1. Applicant's Name: a. Application Date: 15 January 2021 b. Date Received: 28 January 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is Bad Conduct. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the current characterization is unnecessarily harsh and continued punishment is no longer necessary. The medical conditions were not properly considered before or during the court-martial. The applicant's post-service conduct and achievements warrant an upgrade. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 6 March 2023, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, and post-service conduct mitigating the AWOL basis for separation and the DUI misconduct. Accordingly, the Board voted to grant relief in the form of a partial upgrade of the characterization of service to Under Other Than Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. Please see Section 9 (10 for PA) of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 10 February 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 5, dated 16 March 2005, on 8 December 2004, the applicant was found guilty of the following: The Charge, Violation of Article 86, UCMJ: Specification 1: On 4 June 2004, the applicant was AWOL and remained absent until 17 June 2004. Specification 2: On 25 June 2004, the applicant was AWOL and remained absent until 14 September 2004. (2) Adjudged Sentence: Reduction to E-1; to be confined for six months, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 16 March 2005 / The sentence is approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 23 days of confinement towards the sentence to confinement. On 7 January 2005, the automatic forfeitures were waived for six months. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 28 October 2005 per Special Court- Martial Order Number 208. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 November 2001 / 6 years b. Age at Enlistment / Education / GT Score: 21 / High School Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19K10, M1 Armor Crewman / 5 years, 10 months, 2 days d. Prior Service / Characterizations: RA, 25 August 1999 - 28 November 2001 / HD e. Overseas Service / Combat Service: Germany, Kosovo / Kosovo (NIF) f. Awards and Decorations: ARCOM, AAM-2, AGCM, NDSM, GWOTSM, KCM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders 5 and 208, as described in previous paragraph 3c. General Officer Memorandum Of Reprimand, dated 17 October 2002, reflects the applicant was driving under the influence of alcohol on 13 October 2002. After being stopped for failing to maintain a single lane of travel while driving a motor vehicle on Fort Riley, the applicant was administered an intoxilyzer test which showed a blood alcohol level of .121 percent. i. Lost Time / Mode of Return: 94 days (AWOL 4 June 2004 - 16 June 2004, for 13 days; 25 June 2004 - 13 September 2004, for 81 days; and Pretrial Confinement,1 December 2004 - 7 December 2004, for 7 days; and Posttrial Confinement, 8 December 2004 - 12 April 2005, for 207 days) / The applicant returned to unit after each AWOL absences, and for Pretrial and Posttrial confinement, the applicant was released from confinement. a. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; and SPCM Order No. 5. Additional Evidence: Attorney cover letter; Résumé; family pictures; Professional Records and Certificates; and third-party letters. 6. POST SERVICE ACCOMPLISHMENTS: Résumé reflects the applicant is maintaining an employment, attending a community college, and volunteering and participating in community activities as a coach and instructor. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. (4) Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing SJA. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (other). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record (AMHRR) indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends the current discharge characterization is unnecessary and continued punishment is no longer necessary. With respect to a discharge adjudged by a special court- martial, the action of the ADRB is restricted to upgrades based on clemency. The applicant contends medical conditions were not properly considered before or during the court-martial. The applicant's AMHRR contains no documentation of any medical condition or diagnosis. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. Although the applicant is scheduled for a personal appearance hearing, it would still be the applicant's responsibility to meet the burden of proof and provide the appropriate documents (i.e., diagnosis of any medical condition by a competent medical authority) for the Board's consideration because they are not available in the official record. The applicant contends maintaining employment, volunteering in the community, and obtaining achievements warrant an upgrade. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third-party statements provided with the application speak highly of the applicant's character and performance and recognize the applicant's good conduct after leaving the Army. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A. b. The applicant presented the following additional contention(s): Applicant, character witnesses, and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): Mr. E.M. (counsel), Mr. K.F. and Mrs. R.J. (witnesses) 10. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses: The applicant, through counsel, asserts PTSD, depression, and anxiety related to Kosovo service, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The applicant asserts PTSD, Depression, and Anxiety existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor determined documentation is insufficient to make the determination that the applicant's asserted PTSD, Depression and Anxiety existed during military service, or to determine there was any nexus between the asserted BH conditions and the applicant's misconduct. However, in this case, the applicant's assertion of behavioral health difficulties contributing to the misconduct affords partial mitigation. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant's asserted PTSD, Depression, and Anxiety outweighed the basis for applicant's separation as there is insufficient evidence that any of the asserted BH conditions existed during service. b. Response to Contention(s): (1) The applicant contends the current discharge characterization is unnecessary and continued punishment is no longer necessary. The Board considered this contention during proceedings, but ultimately did not address the contention due to a partial upgrade of the characterization of service to Under Other Than Honorable Conditions being granted based on the applicant's length and quality of service, and post-service conduct mitigating the AWOL basis for separation and the DUI misconduct. However, the Board found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the applicant's misconduct, was not sufficiently meritorious to warrant an honorable discharge. (2) The applicant contends medical conditions were not properly considered before or during the court-martial. The Board considered this contention and the applicant's assertion of PTSD, Depression, and Anxiety existing during service, however the Board determined that there is insufficient evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not fully outweigh the basis of separation due to the severity of the offenses, but that a partial upgrade of the characterization of service was warranted due to the aforementioned reasons. (3) The applicant contends maintaining employment, volunteering in the community, and obtaining achievements warrant an upgrade. The Board found validity in this contention and along with the applicant's post-service conduct, along with the length and quality of the applicant's service, determined a partial upgrade of the characterization of service was warranted. c. The Board determined the characterization of service was inequitable based on the applicant's length and quality of service, and post-service conduct mitigating the AWOL basis for separation and the DUI misconduct and thus, a partial upgrade is warranted. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Under Other Than Honorable Conditions because, after applying liberal consideration to all the evidence before the Board, though the applicant's assertion of PTSD, Depression, and Anxiety did not excuse or mitigate the AWOL basis for separation or DUI misconduct, the Board found the misconduct was mitigated by the applicant's length and quality of service, and post-service conduct. However, the Board found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the applicant's misconduct, was not sufficiently meritorious to warrant an honorable discharge. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Under Other Than Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210006659 1