1. Applicant's Name: a. Application Date: 28 March 2017 b. Date Received: 31 March 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. Additionally, the applicant requests a narrative reason change. The applicant seeks relief contending, in effect, that he was previously denied by the ADRB and would now like to appear in person before the Board. The contentions addressed by the applicant in his previous application, reflect, he was advancing and positively contributing to the Army, maintaining a perfect service record, never cited or reprimanded for any disciplinary actions until his discharge. During his deployment to Iraq, the applicant states, he was having difficulty sleeping. Rather than seeking medical treatment, the applicant states, he made a grave error when he accepted the non-prescribed medication from an interpreter and began using it as a sleep aid. Since his discharge, the applicant's career with WD Lee & Company has flourished, he purchased his first home, and has joined the First Freewill Baptist Church. He has volunteered as a fast pitch softball coach for the last three years and actively participated in other community events. The applicant contends, he believes he could have been a strong, beneficial asset to the military and that an upgrade will allow him piece of mind and dignity to say he is an Army veteran. The evidence of record reflects the applicant had a prior records review conducted at Arlington, VA on 4 March 2016. Per the Board's Medical Officer, based on the information available for review at the time, given SMs period of service, he did not have AHLTA records available for review. At the personal appearance, Mr. X discussed utilizing Diazepam (Valium) for self-medication purposes to help with sleep problems which he attributed to a high OPTEMPO in a deployed environment. He denied distribution of medication for financial gain, but did admit to offering medication to others with similar sleep difficulties. Upon separation from the military, SM was diagnosed with Insomnia (by Dr. Bolin) and is prescribed Zolpidem (Ambien) which he takes regularly as a sleep aide. In a personal appearance hearing conducted at Arlington, VA on 12 February 2018, and by a 3- 2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, personal testimony, board judgement, and the circumstances surrounding the discharge (i.e. evidence of service-connected OBH), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: In Lieu of Trial by Court-Martial / AR 635- 200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 26 January 2004 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 27 March 2003, the applicant was charged with: Three specifications of violating Article 80, UCMJ: the applicant did, at or near Mosul, Iraq, between on or about 1 September 2003 and on or about 1 October 2003, attempt to distribute Valium to SSG S H, SGT T K and SGT J D. while receiving special pay under Title 37, United States Code, Section 310. Two specifications of violating Article 112a, UCMJ: The applicant did, at or near Dohuk, Iraq and/or at or near Mosul, Iraq, between on or about 1 September 2003 and on or about 1 October 2003, possess about 300 tablets of Valium, a controlled substance with the intent to distribute the said controlled substance, while receiving special pay under Title 37, United States Code, Section 310. The applicant did, at or near Dohuk, Iraq and/or at or near Mosul, Iraq, between on or about 1 September 2003 and on or about 1 October 2003, use Valium, a controlled substance, while receiving special pay under Title 37, United States Code, Section 310. (2) Legal Consultation Date: 24 December 2003 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. / The request was not signed (i.e., signature line) by the applicant or by his military counsel. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date/Characterization: 4 January 2003 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 September 2001 / 4 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 125 c. Highest Grade Achieved / MOS / Total Service: E-4 /11B10, Infantryman / 2 years, 4 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait - Iraq (5 March 2003 - 16 January 2004) f. Awards and Decorations: NDSM, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Eastridge Family Medicine letter, dated 28 October 2016, states that Dr. B.E.W. had treated the applicant several years ago for problems with insomnia with Zolipidem 10 mg. The doctor advised that the applicant should minimize the use of this medication. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, his career with WD Lee & Company has flourished, he purchased his first home, and has joined a church. He coaches and actively volunteers in his community. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states that although an honorable or general (under honorable conditions) discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable conditions. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge from the Army. The applicant claims that he was having issues with insomnia while deployed and made a grave error when he accepted the non-prescribed medication and began using it as a sleep aid that ultimately led to his discharge. However, the discrediting offense constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 10, AR 635-200, with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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 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 document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None were listed on the data sheet b. The applicant presented the following additional contention(s): None were listed on the data sheet c. Witness(es) / Observer(s): None. 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 12 February 2018, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, personal testimony, board judgement, and the circumstances surrounding the discharge (i.e. evidence of service-connected OBH), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change f. Restore (Restoration of) Grade to: No Change Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer 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 NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20170006598 5