1. Applicant's Name: a. Application Date: 27 July 2022 b. Date Received: 1 August 2022 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 discharge. The applicant requests an upgrade to honorable or general (under honorable conditions) and a narrative reason change. The applicant seeks relief contending, in effect, the bad conduct discharge was due to failure to obey a lawful order, but the applicant failed to obey the order because the applicant believed the order would have caused the death of US. Personnel. b. Board Type and Decision: In a personal appearance conducted on 11 September 2023, and by a 5-0 vote, the Board determined 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 elapsed time of the misconduct. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. Please see Section 10 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: 26 September 2014 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 7, dated 17 August 2004, the applicant pled guilty and was found guilty of willfully obeying a lawful command on or about 2 September 2003; on divers occasions between on or about 15 August 2003 and 3 September 2003, was derelict n the performance of duties by willfully failing to instruct the squad to wear their night vison goggles while on patrol; and on divers occasions between on and about 15 August 2003 and 3 September 2003, was derelict in the performance of duties by willfully failing to conduct a full patrol of an area. (2) Adjudged Sentence: Reduction to the grade of private/E-1; confinement for 6 months; and discharge from the service with a Bad-Conduct Discharge. (3) Date/Sentence Approved: 28 January 2004, except for that portion of the sentence pertaining to a Bad-Conduct Discharge, will be executed. (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: 9 March 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 October 2001 / 6 years b. Age at Enlistment / Education / GT Score: 32 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B10, Infantryman / 21 years, 1 month, 23 days d. Prior Service / Characterizations: 7 October 1987 - 15 October 2001 / HD e. Overseas Service / Combat Service: Germany / DD214 does not reflect combat tour to Iraq, but Special Court Martial Order Number 7 dated 17 AUG 04 reflects arraignment at FOB Ironhorse, Tikrit, Iraq f. Awards and Decorations: ARCOM, AAM, AGCM, CSM, NDSM, AFEM, GWOTSM, AFSM, ASR, OSR, EIB, Basic Marksmanship Badge, Driver and Mechanic Badge-Mechanic g. Performance Ratings: September 2001 - April 2004 / Fully Capable May 2002 - April 2003 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 22 November 1999, reflects the applicant disobeyed a lawful order by wrongfully drinking. The punishment consisted of reduction to specialist/E-4; forfeiture of $742 pay per month for two months, suspended, to be automatically remitted if not vacated before 22 May 200; extra duty for 45 days; and restriction for 45 days. See SCMO as described in item 3c(1). The applicant's AMHRR contains Personnel Action forms changing the applicant's duty status from present for duty to confined by military authorities effective 28 January 2004, and from confined by military authorities effective 19 March 2004. i. Lost Time / Mode of Return: The applicant's DD Form 214 reflects the applicant has Lost Time from 21 April 1998 - 27 January 2004, but there is no evidence of this lost time in the applicant's available AMHRR. The applicant's AMHRR does reflect evidence of Lost Time from 28 January 2004 through 19 March 2004, due to military confinement pursuant to the court- martial order. j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 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 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. (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) Section IV establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed, and the affirmed sentence ordered duly executed. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment. 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 or general (under honorable conditions). The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the bad conduct discharge was due to failure to obey a lawful order, but the applicant failed to obey the order because the applicant believed the order would have caused the death of US. Personnel. 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 provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): N/A 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 checked the Other Behavioral Health box on his ADRB application. (2) Did the condition exist or experience occur during military service? No. The Board's Medical Advisor found that neither the military nor VA medical records contain any information, clinical or otherwise, regarding the applicant. The applicant has also not provided any medical documentation. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the behavioral health advisor cannot make a decision regarding medical mitigation. However, as per liberal consideration, the applicant's self-assertion of Other Behavioral Health merits consideration by the board. (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 self-assertion of Other Behavioral Health outweighed the basis for applicant's separation for disobeying a lawful order. b. Response to Contention(s): The applicant contends the bad conduct discharge was due to failure to obey a lawful order, but the applicant failed to obey the order because the applicant believed the order would have caused the death of US personnel. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's length and quality of service, combat service, post service accomplishments, and the elapsed time since the misconduct outweighing the applicant's disobeying a lawful order and dereliction in the performance of duties. c. The Board determined 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 elapsed time of the misconduct. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because clemency is warranted based on the elapsed time of the misconduct. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is both proper and equitable. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: 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 AR20220010787 1