1. Applicant's Name: a. Application Date: 3 October 2010 b. Date Received: 7 December 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of an under other than honorable conditions discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the applicant joined the local Army Career Center's Future Soldier Program in preparation of life in the Army. That same month, SSG S, the applicant's assigned recruiter, and colleague, SFC M, visited the applicant's home, with the applicant's father present. The recruiters ensured the applicant disclosed all medical conditions, to include discussion on any condition which may have needed a waiver, and identifying the documents that would be required for such a waiver. With the father's extensive background in military career counseling, and experience in recruiting matters, the applicant properly disclosed all medical conditions (including prior surgeries and medications), and obtained notes from all of relevant doctors, in clearing the applicant for military service. The applicant's father ensured complete disclosures to the recruiters. There were no deliberate failures to disclose, or intentional concealments by the applicant, or by the father. On 2 May 2013, the applicant was contacted by SFC L and advised about needing to return to the recruiting office as soon as possible in order to "redo" enlistment application documents; if not, the applicant's report date would be pushed back. It was explained that the original enlistment documents had been lost. When the applicant, accompanied by the father, arrived at the station, all documents had been prepared ahead of time, and the applicant needed only to sign the documents. SFC L insisted the documents were exactly the same as the ones previously completed with SSG S. The applicant, along with the parents, felt pressured to get these new documents signed quickly. SFC L informed the applicant and parents, that the applicant was "on a time crunch" to get the documents signed, as the recruiter had an "anniversary dinner with his wife to get to" and said, "If I'm late, she'll kill me," and rushed the applicant and parents to sign the documents, so the recruiter could leave and be on time for dinner. This set of documents did not contain any of the December 2012 disclosures made by the applicant and father, and did not include any of the doctor's notes clearing the applicant for service. The applicant was never told there were any issues regarding the enlistment and reported to MEPS as originally scheduled, and later reported to Basic Combat Training, as planned. In November 2013, the applicant sustained an injury to the left ankle while completing the final ruck march. Despite the injury, the applicant completed training and transferred to Presidio of Monterey, California, on 7 December 2013, where the applicant began the language training portion of Advanced Individual Training. On 6 March, 2014, the applicant began the Modern Standard Arabic Basic Course; however, was subsequently pulled from the course due to medical issues resulting from the injury. After disenrollment from language training, the applicant began working as a 42A in the company's Orderly Room. The applicant attempted to reclassify into the 42A MOS after finding enjoyment in the Orderly Room; however, continued medical complications prevented the applicant from reclassifying. The applicant had submitted multiple complaints through the Inspector General's Office, Patient Advocates, and the chain of command regarding treatment. After months of no relief, Mr. C finally ordered an MRI, which revealed the applicant had been suffering with a broken ankle for the past 10 months. Approximately two weeks later, the applicant began treatment with a new PCM, Dr. N. The applicant's recovery stalled and another MRI showed tendon and ligament damage resulting from the broken bone. It was not until after the applicant was denied the option to re-class, that the applicant inquired about an MEB. In December 2015, Medical Evaluation Board (MEB) proceedings were initiated. At the end of 2015, another MRI showed the applicant's tendons had not been fixed during the first surgery. In December 2015, the applicant was prescribed Hydrocodone for pain management while waiting on the MEB to proceed further - this allowed a second surgery to ultimately repair the ankle. Major L requested help getting the prescription sent to Presidio (instead of forcing the applicant to make a 6-hour round trip to Travis Air Force Base for any refills); however, Dr. N refused to help. In February 2016, the applicant then found oneself hospitalized for what the applicant was told was "opiate withdrawal". Dr. N repeatedly accused the applicant of abusing medication and trying to illegally obtain more pills. Due to these allegations, the applicant was branded a "drug seeker" and "abuser". Dr. N submitted a sworn statement accusing the applicant of fraudulent enlistment, based on prescription history as a child. Dr. N diagnosed the applicant as having a severe psychiatric disease. The applicant was never referred to the Behavior Health for any evaluation to support such a diagnosis. The MEB proceedings were completed on 9 March 2016 and forwarded to the Physical Evaluation Board. The MEB found the applicant's injury had occurred in the line of duty, not due to misconduct, and did not exist prior to service. During this time in mid-March 2016, an administrative separation had been undertaken by the Company Commander, with a recommendation for a general discharge. On 1 April 2016, without prior knowledge, the applicant received a second notification from Commander, Alpha Company, 229th Military Intelligence Battalion, regarding administrative separation; however, this notification indicated the character of service would be "Other Than Honorable". On 4 April 2016, the Informal Physical Evaluation Board (IPEB) completed its review of the applicant's case. The IPEB found the applicant physically unfit, recommended a rating of 30 percent and that the applicant be granted Permanent Disability Retirement. In spite of the IPEB's findings and recommendations, the applicant was discharged for fraudulent entry into the service. The applicant was left without the ability to sell back leave earned, no medical access, and denied the ability to seek G.I. Bill entitlements. On 6 June 2017, the applicant underwent a second surgery to repair the ankle. The surgeon, Dr. D, informed the applicant about not having a torn tendon, but instead, the peroneal tendons were fused together, and should have been evident during the first surgery while in the Army; and, had the tendons been separated during the first surgery, the applicant would not have needed a second one. Since discharge, the applicant pursuing an Associate's of Science Degree in Engineering. The applicant is also employed by the College as a receptionist and administrative assistant in the Intercultural Learning Center. Given the totality of the circumstances of the case, the applicant is hopeful the Board will determine that the applicant should not have been discharged due to a fraudulent enlistment. Counsel, further details contentions in an allied legal brief. 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, Dysthymic Disorder (Depressive Neurosis), Opioid Dependence, Other Problem Related to Employment, and Gender Dysphoric Disorder. The applicant is 50% service-connected from the VA. The VA has also diagnosed the applicant with Adjustment Disorder and Gender Dysphoria. 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 28 August 2019, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length of service and the circumstances surrounding the discharge (i.e. in-service diagnosis of 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 general under honorable conditions. 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: Fraudulent Entry / AR 635-200 / Chapter 7, SEC V / JDA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 12 July 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 April 2017 (2) Basis for Separation: The applicant was informed of the following reasons: At the time of his enlistment, he deliberately concealed the fact that he had a history of recurrent headaches of such severity as to require prescription medication. This is a disqualifying condition IAW AR 40-501, para. 2-26e. In the alternate, at the time of his enlistment, he deliberately concealed the fact that he had current or a history of psychiatric disorder(s) with psychotic features, current or a history of mood disorders, or current or a history of other mental disorders. These conditions are disqualifying IAW AR 40-501, paras. 2-27c, d, and p, respectively. The information he deliberately concealed, had it been known and considered by the Army at the time of his enlistment, may have resulted in denial of his enlistment. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: On 5 May 2016, the applicant was notified to appear before an administrative separation board and advised of his rights. On 31 May 2016, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge with characterization of service of Under Other Than Honorable Conditions. The separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge with a characterization of service of Under Other Than Honorable Conditions. (6) Separation Decision Date / Characterization: 15 June 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 September 2013 / 6 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 117 c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 2 years, 9 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Investigation Findings, dated 22 February 2016, reflects the investigation officer found: The evidence and statements made it clear the applicant had a long term history of taking psychoactive medications. It is not explicitly clear what the medical condition or diagnosis related to these medications was. However, Dr. N states that it is very likely indicative of a "significant period of treatment for very significant psychiatric disease." Even if that was not the case, and the medications were all prescribed for other atypical uses as he claims, at least one of the atypical uses he gives (headache pain) should have triggered its own disclosure. It appeared likely that the applicant was at least generally aware of the intent and history of these medications. At the very least, his father, who cosigned the form, would have been. AR 635-200 states that Commanders must utilize two tests to determine if an individual has fraudulently enlisted. The first test is to determine whether the concealed information is, in fact, disqualifying. It is stated that conditions are presumed to be disqualifying even if they would have been waiverable at the time of enlistment. The applicant's history met this test. If it is assumed that the medications were prescribed to treat depression, schizophrenia, or bipolar disorder, he would have been found disqualified by AR 40-501, paragraphs 2-27(c), (d), (j), or (p). If it assumed that the treatment is related to headaches and other conditions, he would have been found disqualified by AR 40-501, paragraph 2-26(e). The second test required by AR 635-200 is to verify the existence and true nature of the apparently disqualifying information. The applicant's history met this requirement, based on the extensive medical records, and his admission by sworn statement. The applicant appeared to have committed fraudulent enlistment per AR 635-200. This fraudulent enlistment appeared to have been done willfully and intentionally, with the support of his father. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Medical Evaluation Board Proceedings, dated 8 March 2016, reflects the applicant was diagnosed with: Chronic Adjustment Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with allied legal brief and all listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he pursuing his Associate's Degree and has obtained employment. 7. REGULATORY CITATION(S): Army Regulation (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7, paragraph 7-17 provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention. Soldiers separated under Chapter 7 may be awarded an honorable discharge, general, under honorable conditions discharge, or a discharge under other than honorable conditions. If in an entry level status, the discharge will be uncharacterized. 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 "JDA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 7, paragraph 7-17, fraudulent entry. 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, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable and a narrative reason change. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms that 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. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends he did not conceal or omit and information from his recruiters. However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. Further, an investigation determined that the applicant failed two tests, as prescribed in AR 635-200, Chapter 7, to determine fraudulent entry. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 7, paragraph 7-17, 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 "Fraudlent Entry, SEC V" and the separation code is "JDA"." 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 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 performance; 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. 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 28 August 2019, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length of service and the circumstances surrounding the discharge (i.e. in-service diagnosis of 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 general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions 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 AR20180001087 7