1. Applicant’s Name: a. Application Date: 31 July 2015 b. Date Received: 3 August 2015 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. The applicant seeks relief contending, in effect, he served with honor for eight years and eleven months, which included three tours in Iraq and the only negative was a gun charge in Louisville. The Army discharged him and he used marijuana due to being depressed. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had no mitigating medical or behavioral health condition(s) for the offenses which led to his separation form the Army. The active duty electronic medical records were reviewed. In a personal appearance hearing conducted at Arlington, VA on 11 July 2016, and by a 4-1 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 11 September 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 June 2012 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; Receiving a FG Article 15 for one specification in violation of Article 112a, UCMJ (wrongful use of controlled substance), 24 May 2012; specifically, testing positive for marijuana, during a random drug test administered by his unit (21 December 2011); Being charged with four felonies (Assault I, receiving stolen firearm, and tampering with physical evidence (two counts) and one misdemeanor (possession of a defaced firearm) in Jefferson Circuit Court, Division One in the Commonwealth of Kentucky (28 July 2011); Assault I: in Jefferson County, Kentucky, acting alone or in complicity with another or others, he committed the offense of Assault in the First Degree when he (a) intentionally caused serious physical injury to E.R., by means of a deadly weapon or a dangerous instrument, or (b) under circumstances manifesting extreme indifference to the value of human life, he wantonly engaged in conduct which created grave risk of death to another and thereby caused serious physical injury to E.R. (28 April 2011). This is a Class B felony in violation of KRS 508.010; Receiving Stolen Firearm: in Jefferson County, Kentucky, acting alone or in complicity with another or others, he committed the offense of receiving stolen property by knowingly having in his possession a stolen firearm, which had been stolen from another and at the time of such possession he knew or had reason to believe the property had been stolen (28 April 2011). This is a Class D felony in violation of KRS 514.110; Tampering with physical evidence (count one): in Jefferson County, Kentucky, acting alone or in complicity with another or others, he committed the offense of Tampering With Physical Evidence when, believing that an official proceeding may be pending or instituted against him, he destroyed, mutilated, concealed, removed, or altered the physical evidence which he believed was about to be produced or used in such official proceeding, with the intent to impair its verity or availability in the official proceeding (28 April 2011). This is a Class D felony in violation of KRS 524.100. Tampering with physical evidence (count two): in Jefferson County, Kentucky, acting alone or in complicity with another or others, he committed the offense of tampering with physical evidence when, believing that an official proceeding may be pending or instituted against him, he destroyed, mutilated, concealed, removed, or altered the physical evidence which he believed was about to be produced or used in such official proceeding, with the intent to impair its verity or availability in the official proceeding (28 April 2011). This is a Class D felony in violation of KRS 524.100. Possession of a defaced firearm: in Jefferson County, Kentucky, acting alone or in complicity with another or others, he committed the offense of possession of a defaced firearm by knowingly possessing a firearm upon which the manufacturer's serial number or other distinguishing number or identification mark had been removed, defaced, covered, altered or destroyed (28 April 2011). This is a Class A misdemeanor in violation of KRS 527.050. (3) Recommended Characterization: Under Other Than Honorable Conditions Discharge (4) Legal Consultation Date: 19 June 2012 and 21 August 2012 (5) Administrative Separation Board: Conditionally waived, 19 June 2012, contingent upon him receiving a characterization of service of no less favorable than general, under honorable conditions On 6 July 2012, the separation approving authority disapproved the applicant’s conditional waiver request and direct that he proceed to an administrative separation board. On 11 July 2012, the applicant was notified to appear before an administrative separation board and advised of his rights. On 21 August 2012, the applicant unconditionally waived consideration of his case by an administrative separation board. (6) Separation Decision Date/Characterization: 23 August 2012 / Under Other Than Honorable Conditions Discharge 4. SERVICE DETAILS: a. Date/Period of Enlistment: 4 October 2010 / 5 years b. Age at Enlistment/Education/GT Score: 24 / GED / 95 c. Highest Grade Achieved/MOS/Total Service: E-5 / 19K10, M1 Armor Crewman / 9 years, 5 months and 27 days d. Prior Service/Characterizations: RA (13 May2003-10 April 2006) / HD RA (11 April 2006-3 October 2010) / HD e. Overseas Service/Combat Service: SWA / Iraq (1 October 2003 - 27 March 2004, 14 November 2005 - 8 November 2006, and 26 October 2007 - 12 December 2008) f. Awards and Decorations: ARCOM-6, AGCM-2, NDSM, ICM-3CS, GWTEM, GWTSM, NOPDR, ASR, OSR-2 g. Performance Ratings: 30 April 2009 - 28 April 2011, Fully Capable h. Disciplinary Action(s)/Evidentiary Record: Positive urinalysis coded IR (Inspection Random), dated 21 December 2011, for THC. CID Report of Investigation, dated 17 January 2012, dated indicates the applicant was under investigation for wrongful use of marijuana. FG Article 15, dated 24 May 2012, for wrongfully using marijuana (21 December 2011). The punishment consisted of a reduction to E-4, forfeiture of $1,181 pay for two months (suspended); extra duty for 45 days, and restriction for 45 days (suspended) Two negative counseling statements, dated 11 January 2012 and 14 August 2012, for wrongful use and possession of a controlled substance. On 17 August 2012, the suspension of punishment of forfeiture of $1,181 pay for two months was vacated for the new offense of wrongfully using marijuana (20 July 2012) i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: DD Form 2808 (Report of Medical Examination), dated 28 February 2012, shows the applicant was diagnosed with an adjustment disorder. DA Form 3822-R (Report of Mental Status Evaluation), dated 8 March 2012, indicates the applicant had an Axis I diagnosis of an adjustment disorder. The applicant was experiencing distress about his current life events: however his distress was not a level to interfere with fitness for duty or to require a medical Board. He was cleared for administrative action. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; attorney’s legal statement (undated, six pages); applicant’s sworn statement (two pages); DD Form 214; Enlisted Record Brief (ERB); family photos; NCO Academy graduation certificate; certificate of achievement; three DA Forms 2166-8 (NCO Evaluation Report); certificate of completion; honorable discharge certificate; oath of enlistment; four DA Forms 638 (Recommendation for Award); AR 635-200 excerpt, pages I, 99-106 and page Viii; Chapter 14 separation packet (15 pages); and a letter, dated 4 November 2015, and US Senate documents (three pages). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 allows for separation for misconduct with paragraph 14-1 allowing for separating personnel because of minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave. Paragraph 14-2 states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a Soldier further effort is not likely to succeed; rehabilitation is impracticable or the Soldier is not amenable to rehabilitation. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members’ discharges. “Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre-existing conditions which are determined not to have been incurred or aggravated while in military service.” 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. The applicant’s record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the documented pattern of misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant provided no independent corroborating evidence demonstrating either the command's action was erroneous or the applicant’s service mitigated the misconduct or poor duty performance, such that he should have been retained on active duty. The applicant seeks relief contending, he served with honor for eight years and eleven months, which included three tours in Iraq and the only negative was a gun charge in Louisville. The applicant’s service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered. The service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant further contends, the Army initiated discharge proceedings against him and he used marijuana due to being depressed. The record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional documents: Medical Documents – 11 pages b. The applicant presented no additional contentions. c. Witness(es)/Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 11 July 2016, and by a 4-1 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore (Restoration of) Grade to: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NA - Not applicable SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH – Behavioral Health HD - Honorable Discharge OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police – PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status MST – Military Sexual Trauma RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150012975 1