1. Applicant's Name: a. Application Date: 26 December 2017 b. Date Received: 2 January 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than honorable conditions discharge to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, served the country honorably. The applicant deployed to the Middle East twice after 9/11 and was in the invasion of Iraq in 2003. When the applicant was in out-processing from the Army in late 2003, the applicant was arrested for possession but was never in possession of anything. The applicant was married and living in a home off post and a lot of Soldiers would come to the house on the weekends for cook outs, etc. One Soldier who would come over made friends with a neighbor, got drugs from to try and failed multiple drug tests in order to get kicked out. This Soldier felt very guilty for these things. This Soldier also told the Battalion Commander that the drugs were acquired while at the applicant's house. So a warrant was issued and the applicant was arrested by the state of GA and charged by the military. This was in mid-November 2003. The applicant's family was already moving home to Indiana. The applicant could prove innocence, but would have had to wait to go to a court martial to prove it. The applicant could not stay in GA for another year waiting on court. The applicant's attorney, who was a retired military judge asked that they let the applicant out under a Chapter 10 discharge. Once the applicant proved innocence, the applicant could have this discharge upgraded. The applicant was able to prove it to the state and all charges were dismissed. The applicant has never asked for anything from the government since discharge. The applicant has suffered from PTSD for 14 years now and is finally asking for help. The applicant contends they say the discharge must be upgraded in order to be seen at the VA. 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 indicated no records for the applicant. Post- service, in an initial disability benefits questionnaire, the applicant was diagnosed with PTSD and Major Depressive Disorder. In summary, the applicant did not have a medical or behavioral health condition that was mitigating for the offenses which led to separation from the Army. In a records review conducted at Arlington, VA on 7 December 2018, 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: 30 December 2003 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 November 2003 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 20 November 2003, the applicant was charged with the following offenses: Wrongful distribution of approximately 4 grams of cocaine, a schedule II controlled substance on 9 September 2003; and Wrongful distribution of approximately 5 grams of crack cocaine, a schedule II controlled substance on 17 September 2003. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 2 December 2003 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 17 December 2003 / Under Other Then Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 November 2000 / 3 years b. Age at Enlistment / Education / GT Score: 21 / GED / 114 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14S10, Avenger Crewmember / 3 years, 1 month, 15 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (29 March 2002 to 1 October 2002) and Iraq (27 January 2003 to 28 July 2003) f. Awards and Decorations: NDSM, AFEM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: CID Report, dated 25 November 2003, which shows the applicant was the subject of investigation for wrongful distribution of cocaine, wrongful possession of cocaine, and wrongful use of cocaine. Electronic copy of the DD Form 2624, dated 12 February 2002, reflects the applicant tested positive for Cocaine during an Inspection Random (IR) urinalysis testing conducted on 22 January 2002. FG Article 15, dated 8 July 2002, for the wrongful use of cocaine between 19 December 2002 and 22 January 2002. The punishment consisted of reduction to E-1, forfeiture of $552 pay per month for two months, and extra duty for 45 days. Military Police Report showing the applicant was the subject of investigation for distribution of cocaine and that he had prior charges of wrongful use/possession of cocaine and distribution of cocaine. Counseling statement for positive urinalysis for illegal drugs. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, documents submitted by the applicant shows he was diagnosed with PTSD and major depressive disorder, recurrent, severe in his initial post-traumatic stress disorder (PTSD) disability benefits questionnaire. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; court-document from the State of Georgia (Motion to Nolie Prosequi); medical documents from the Logistics Health Incorporated; and DD Form 214. 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 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. 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 or general (under 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 several offenses 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 several acts of significant achievements; however, it appears it did not support the issuance of an honorable discharge by the separation authority at the time of discharge The applicant seeks relief contending that he served his country honorably. He deployed to the Middle East twice after 9/11. He was in the invasion of Iraq in 2003. 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 and the applicant is to be commended on his accomplishments. The applicant contends that when he was out-processing from the Army in late 2003, he was arrested for possession but was never in possession of anything. He was married and living in a home off post, a lot of Soldiers would come to his house on the weekends for cook outs, etc. One Soldier who would come over made friends with a neighbor and got drugs from him to try and failed multiple drug tests so that he would be kicked out. He felt very guilty for the things he did. He told his battalion commander that he got it while at the applicant's house. So a warrant was issued and the applicant was arrested by the state of GA and charged by the military. This was in mid-November 2003. His family was already moving home to Indiana. He could prove his innocence, but he would have had to wait to go to his court martial to prove it. He could not stay in GA for up to another year waiting on court. His attorney, who was a retired military judge asked that they let him out under the Chapter 10 discharge. Once he proved his innocence, he could have his discharge upgraded. He was able to prove it to the state and all of his charges were dismissed. The applicant's contentions of having proven his innocence was noted; the motion to Nolle Prosequi submitted by the applicant dated 4 October 2006, does not indicated the applicant was proven to be innocence, but that he had been cooperating with law enforcement. 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. The applicant also contends he has suffered from PTSD for 14 years now and is finally asking for help. He contends they say his discharge must be upgrade to be seen at the VA. The independent documents submitted by the applicant showing he was diagnosed with PTSD and major depressive disorder, recurrent, severe in his initial post-traumatic stress disorder (PTSD) disability benefits questionnaire, were noted. However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 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 7 December 2018, 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 AR20180001244 1