1. Applicant's Name: a. Application Date: 1 December 2020 b. Date Received: 7 December 2020 c. Counsel: None 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 applicant was diagnosed with post-traumatic stress disorder (PTSD) before receiving the bad conduct discharge. The applicant's enlisted record brief (ERB) reflects the applicant was promoted fast prior to suffering from PTSD. The applicant requests that the record of trial, diagnosis of PTSD, ERB, and testimony of witnesses be reviewed. On 4 October 2021, the applicant, through congress, requests that the rank be restored in addition to the upgrade. The request states that the applicant was diagnosed with PTSD and was being treated while in service and still being treated for PTSD and other related issues. b. Board Type and Decision: In a records review conducted on 2 August 2023, and by a 5-0 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on the applicant's length of service and the applicant's Post Traumatic Stress Disorder mitigating the applicant's missing movement offenses. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. Please see Section 9 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: 27 March 2008 c. Separation Facts: The applicant's Army Military Human Resource Record (AMHRR) has the case separation on file. However, the applicant provided several documents which are described below in 3c(1) through (4). (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 15, dated 24 May 2007, on 6 February 2007, the applicant was found guilty of the following: Charge I, in violation of Article 87 Specification 1: On or about 25 October 2006, the applicant through design miss the movement of American Airlines flight AA102, with which the applicant was required in the course of duty to move. Specification 2: On or about 4 November 2006, the applicant through design miss the movement of American Airlines flight AA102, with which the applicant was required in the course of duty to move. (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: 24 May 2007 / Only so much of the sentence, a reduction to E-1, confinement for six months, and a bad conduct discharge was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. Additionally, the automatic forfeitures were deferred effective 20 February 2007, and would be terminated on this date. Additionally, waiver of automatic forfeitures were disapproved. (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: 31 January 2008 per Special Court- Martial Order Number 12. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 October 2005 / 3 years b. Age at Enlistment / Education / GT Score: 28 / High School Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 3 months, 26 days d. Prior Service / Characterizations: RA, 13 May 1997 - 2 February 1998 / GD (Break in Service) ARNG, 31 March 2000 - 31 October 2000 / GD (Break in Service) RA, 21 February 2005 - 27 March 2008 / BCD e. Overseas Service / Combat Service: NIF f. Awards and Decorations: ICM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders 15 and 12, as described in previous paragraph 3c. Developmental Counseling Form, dated 27 October 2006, reflects the applicant was counseled for missing movement, absence with authority, insubordinate toward a noncommissioned officer, and failure to obey an order or regulation. Developmental Counseling Form, dated 3 November 2006, reflects the applicant was counseled to inform the applicant to report back to the unit and proceed with movement scheduled on 4 November 2006. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag), dated 6 November 2006, reflects the applicant was flagged for adverse action (AA) effective 6 November 2006. The applicant's ERB, dated 22 January 2007, reflects the applicant was flagged for adverse action (AA), effective 24 August 2006. Confinement order dated 22 March 2007, reflects the applicant was assigned to A Battery, Personnel Control Facility, Personnel and Support Battalion, United States Army Facility Fort Sill, Fort Sill, OK and attached to Regional Confinement Facility, Fort Lewis, WA on 2 April 2007. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "Confined by Civil Authorities (CCA)," effective 6 February 2007; From "CCA," to "PDY," effective 28 June 2007. i. Lost Time / Mode of Return: 4 months, 22 days (CMA, 6 February 2007 - 27 June 2007) / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: Chronological Record of Medical Care: 19 October 2006 - The applicant was seen as a walk-in in the Schofield Barracks Soldier Assistance Center. The applicant's problems included chronic PTSD and had active medications. 25 October 2006 - While on rest and recuperation leave, the applicant was seen for acute stress disorder due to the applicant's wife urged the applicant to be seen. The applicant was having nightmares and reported to have witnessed the death of two close friends in Iraq. 4 December 2006 - Reflects adjustment disorder, chronic PTSD, acute stress disorder, and depression. The physician states: Acute Stress Disorder - The applicant will continue weekly PTSD group and continue medication daily. Panic Disorder without Agoraphobia - The applicant continues to engage in weekly panic group, medication, and psychiatric therapy. Assessment of patient condition work-related - Recommend chapter 5-17 versus court martial for refusal to redeploy after R&R. Recommendation based on influence acute stress had on the applicant's decision. 4 January 2007 - Reflects adjustment disorder, chronic PTSD, acute stress disorder, depression, and panic disorder without agoraphobia and an active medication. 8 January 2007 - Reflects chronic PTSD and depression. The applicant was recommended for a chapter 5-17, Condition, Not a Disability, on the mental health exam which was given to the command. This occurred before the applicant missed movement. (2) AMHRR Listed: Report of Mental Status Evaluation (MSE), dated 4 December 2006, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; and met medical retention requirements. The applicant did not warrant disposition through medical channels. ln other words, the applicant did not meet criteria for Medical Evaluation Board/Physical Evaluation Board. The applicant was recommended for administrative separation under Chapter 5-17. The applicant had a diagnosis of acute stress disorder and panic disorder. It was in the opinion of the psychiatric nurse practitioner that the applicant's actions related to refusal to redeploy were influenced by mental status and symptoms of acute distress. The applicant had been compliant with all treatment recommendations to this point including PTSD group, panic group, and medication management. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two Enlisted Record Briefs; two spouse letters; case separation packet; medical records. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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 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 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Paragraph 3-10 states a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general 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. (6) 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 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, in effect, to have been diagnosed with PTSD and prescribed medications before receiving the bad conduct discharge. The applicant provided a chronological record of medical care, dated 19 October 2006, that reflects the applicant's problems included chronic PTSD. While on rest and recuperation leave, the applicant was seen on 25 October 2006 for acute stress disorder due to the applicant's wife urged the applicant to be seen. The applicant was having nightmares and reported to have witnessed the death of two close friends in Iraq. The AMHRR shows the applicant underwent a MSE on 4 December 2006, which indicates the applicant was diagnosis with acute stress disorder and panic disorder. It was in the opinion of the psychiatric nurse practitioner that the applicant's actions related to refusal to redeploy were influenced by mental status and symptoms of acute distress. The AMHRR reflects the applicant received a bad conduct discharge on 27 March 2008. The applicant contends, in effect, the applicant was promoted fast prior to suffering from and PTSD and that the Board should review. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. A statement from the applicant's wife provided with the application states the applicant suffered from depression, and physical and mental conditions after returning home from deployment during rest and recuperation leave. Although the applicant was treated for PTSD and given medication, the applicant could not bring self to return overseas. The analyst notes item 12c (Net Active Service this Period) of the applicant's DD Form 214 under review, shows as 2 years and 15 days, it should be 2 years, 8 months, and 15 days (see time calculations in 04b-AdditionalInfo). AR 635-5, paragraph 2-4h (12)(c) states the net active service this period is the amount of service this period, computed by subtracting item 12a (Date Entered Active Duty this Period) from 12b (Separation Date this Period). Lost time under Title 10 United States Code 972 and non-creditable time after expiration time of service, if any, are deducted. This does not fall within this board's purview; however, the applicant may apply to the ABCMR, using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 9. 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 held in- service diagnoses from treating providers of Acute Reaction Disorder, Depression, Panic Disorder without Agoraphobia, Anxiety Disorder NOS, and Post Traumatic Stress Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses from treating providers of Acute Reaction Disorder, Depression, Panic Disorder without Agoraphobia, Anxiety Disorder NOS, and PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and avoidance, the misconduct is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Post Traumatic Stress Disorder outweighed the missing movement basis for separation. b. Response to Contention(s): The applicant contends to have been diagnosed with PTSD and prescribed medications before receiving the bad conduct discharge. The Board liberally considered this contention and determined that that the applicant's Post Traumatic Stress Disorder outweighed the missing movement basis for separation. Therefore, an upgrade to General characterization is warranted. c. After carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on the applicant's length of service and the applicant's Post Traumatic Stress Disorder mitigating the applicant's missing movement offenses. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. The applicant has exhausted 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 General because the applicant's Post Traumatic Stress Disorder outweighed the applicant's missing movement offenses. Thus, the prior characterization is no longer appropriate. (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. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under 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 AR20210011218 1