1. Applicant's Name: a. Application Date: 23 February 2017 b. Date Received: 5 June 2017 c. Counsel: None 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. The applicant seeks relief contending, in effect, while stationed in Hawaii, the applicant underwent two surgery's to correct the left hip. During the recovery for the second surgery, the prescribed medications were not helping to relive the severe pain the applicant was enduring. The problems started when the applicant over slept and missed formation and was charged with UA. The applicant was sent to pretrial confinement for 30 days and then sent back to the unit. The applicant was still under severe pain and discomfort from the surgery and started self- medicating with alcohol at first, to help with the pain, but to no avail. The applicant then resorted to using cocaine to help with the pain and later tested positive during a urinalysis and started to attend ASAP classes. The applicant was informed that in lieu of trial by court-martial to accept this discharge as it would get the applicant back home sooner to help recover. Since discharge, the applicant started working right away at Gulf Side Warehouse at the Port of Brownsville. The applicant then went to work for Select Staff for job assistance and has been working for them without incident. The applicant truly regrets the decision that was made during the service in the Army. The applicant fully understands that this was not in keeping with the Army Values, which were and still are instilled in the applicant. The applicant has been drug free since departing the Army and has not been in any trouble with the civilian authorities. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of Adjustment Disorder with depressed mood/with mixed disturbance of emotions and conduct, Cocaine Abuse, Mood Disorder, Alcohol Use Disorder, and Nicotine Dependence. The VA has diagnosed the applicant with Insomnia. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 9 October 2019, and by a 5-0 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: In Lieu of Trial by Court-Martial / AR 635- 200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 1 July 2016 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (2) Legal Consultation Date: NIF (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. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date/Characterization: 23 June 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 July 2013 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 10 months, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Imposition of Pretrial Confinement (memo), dated 26 May 2016, reflects the applicant was placed in pretrial confinement based on an initial inquiry, which determined he committed the following acts of misconduct: On or about 20 May 2016, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 accountability formation. This is in violation of Article 86 UCMJ; On or about 26 May 2016, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 accountability formation. This is in violation of Article 86 UCMJ; Between on or about 25 January 2016, and on or about 24 February 2016, wrongfully use cocaine, a Schedule II controlled substance. This is in violation of Article 112a UCMJ. Between on or about 1 January 2016 and on or about 31 March 2016, wrongfully distribute about .25 ounces of cocaine, a Schedule II controlled substance; * * Between on or about 1 January 2016 and on or about 31 March 2016, wrongfully distribute about 1.5 grams of cocaine, a Schedule II controlled substance. This is in violation of Article 112a UCMJ; Between on or about 1 January 2016, and on or about 31 March 2016, wrongfully possess .25 grams of cocaine, a Schedule II controlled substance. This is in violation of Article 112a UCMJ; Between on or about 1 May 2016, and on or about 8 May 2016, wrongfully use of Tetrahydrocannabinol, Benzodiazepine, Amphetamines, Cocaine and Opioids. This is in violation of Article I 12a UCMJ; Between on or about 25 May 2016 and 26 May 2016, wrongfully distribute Oxycodone and Benzodiazepine, Schedule II controlled substances. This is in violation of Article 112a UCMJ; Having received a lawful command from Captain K, his superior commissioned officer, to reside in a barracks room assigned to the applicant, or words to that effect, did on or about 26 May 2016, willfully disobey the same; and, Having received a lawful command from Captain K, his superior commissioned officer, to sign-in with CQ during off-duty days at 0600, 0900, 1200, 1500, 1800 and 2100 and report to his immediate supervisor at those times during duty days, or words to that effect, did on divers occasions between on or about 15 May 2016 and on or about 26 May 2016, willfully disobey the same. i. Lost Time / Mode of Return: 27 days (NIF, 26 May 2016 - 22 June 2016) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; VA Rating Decision; VA Form 4107; VA Form 21-0958; Criminal History report; six letters of support. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he started working at Gulf Side Warehouse and then went to work for Select Staff without incident. He states he has had no incidents with civil authorities. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable conditions. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the complete specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of Under Other Than Honorable Conditions. Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. There is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. The applicant contends he was self-medicating to cope pain from his surgery; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization 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 third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the complete discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. Based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 9 October 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: 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 AR20170012668 1