1. Applicant's Name: a. Application Date: 17 February 2018 b. Date Received: 20 February 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, enlisted with the best of intentions as a 19 year old following the September 11 attacks on the country. The applicant states from a maturity stand point, the applicant was not ready for the military. After three years of service, the applicant was discharged for misconduct with an under other than honorable discharge. The misconduct which led to discharge was the use of Psilocybin (mushrooms) from Amsterdam, Holland. The applicant went to Holland on leave, purchased and ingested mushrooms. The girlfriend at the time, who would eventually go on to become the wife, also went and consumed mushrooms as well. She had a very bad reaction to the mushrooms and went to the hospital. Her father contacted the applicant's unit after she was hospitalized and the unit detained the applicant and drew the applicant's blood. The applicant was not Mirandized, or under arrest, was not asked and did not consent to a blood draw. The blood results were obtained illegally and it was discovered that the applicant had psilocybin in the blood stream. The applicant admitted to the use of Mushrooms and this started the separation from the Army for misconduct. The applicant waited 13 years in order to build a positive track record without any blemishes and prove to the Board that the applicant is worthy of, and deserves an upgrade. The applicant can gladly go before the Board and say that the applicant is, an honorable person, a family man, a prosecutor, an educated man and a valuable contributing member of the community. The applicant has accepted responsibility for what had been done and has faced the repercussions. Though the applicant was only in the Army for three years, the applicant has been living with the burden and the consequences since discharge. The punishment far outweighs the misconduct and for that reason the discharge is inequitable. The substance used was purchased and used legally, but for the military membership would not have been a problem whatsoever. The applicant believes the discharge to be inequitable because of being a target at the unit following assistance to another Soldier who was sexually assaulted. The applicant was seen as a traitor and the willingness to help an assaulted woman was not popular with the unit and as result, experienced the full brunt of a whistle blower retaliation effect. The applicant was subject to heightened scrutiny and gratuitous negative treatment, which created a situation where it was impossible to avoid being in trouble. Since discharge, the applicant enrolled in college at the University at Buffalo and began to find true self and works hard to generate some positive change in life. The applicant graduated with honors in only three years while taking graduate courses and working part-time. The applicant's work ethic learned in the Army was the reason for these accomplishments. The applicant volunteered at make a wish, and habitat for humanity; he helps professors with research projects; tutored students after classes; and kept building momentum in the right direction. The applicant went to a top 100-law school and passed the NY state bar exam and afterwards obtained a Job in the County District Attorney's office, where the applicant has been a prosecutor for six years. The applicant applied and conducted a FSO interview with a JAG Captain, who was of the opinion that the classification of discharge is the only potential hurdle for the applicant to become a JAG officer. An upgrade would allow the applicant to serve again as a mature man who has learned from experience, a faithful husband, a father, a scholar, an attorney, and a public servant with insight and life lessons that few rarely have. The applicant states the discharge has not been a secret. Though it is always uncomfortable and unpleasant, the applicant is upfront with employers and prospective employers about the military discharge. The applicant refuses to jeopardize integrity and discloses the discharge despite knowing it will likely slam another door shut. The applicant discloses it because that is the price paid for the actions and the applicant is an honorable person. Disclosing the military discharge almost always forecloses opportunities. The applicant further details lost opportunities and contentions in a self-authored statement provided with the application. In a records review conducted at Arlington, VA on 11 March 2019, and by a 3-2 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 / AR 635-200 / Chapter 14-12b / JKA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 31 March 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 September 2004 (2) Basis for Separation: The applicant was informed of the following reasons: Wrongful consumption of alcohol less than eight hours before duty; Lying to a noncommissioned officer; Dereliction of duty for losing his weapon card; Wrongfully using Psilocin, a Schedule I controlled substance on or between 1 December 2003 and 1 February 2004; Dereliction of duty for failing to follow sick-call procedures; Failure to be at his appointed place of duty; Wrongfully impersonating a noncommissioned officer by identifying himself to the Polizei as 1SG M; and, Failure to obey a commissioned officer by wrongfully consuming alcohol during Range Density. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 9 February 2005 (5) Administrative Separation Board: On 9 February 2005, the applicant conditionally waived consideration of his case before an administrative separation board, contingent upon him receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 8 March 2005, the separation authority referred the applicant to an administrative separation board. On 9 March 2005, the applicant unconditionally waived consideration of his case before an administrative separation board. (6) Separation Decision Date / Characterization: 17 March 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 November 2002 / 5 years b. Age at Enlistment / Education / GT Score: 19 / GED / 126 c. Highest Grade Achieved / MOS / Total Service: E-3 / 31B10, Military Police / 2 years, 4 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 2 June 2004, for wrongfully using Psilocin, a Schedule I controlled substance (between 1 December 2003 and 1 February 2004). The punishment consisted of a reduction to E-1; forfeiture of $597 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Mental Status Report, dated 7 September 2004, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with clear a thinking process. Record Of Supplementary Action Under Article 15, UCMJ, dated 1 November 2004, reflects the suspended portion of the punishment imposed on 2 June 2004, was vacated because the applicant wrongfully and willfully impersonated a Noncommissioned officer of the Army. CG Article 15, dated 3 November 2004, for wrongfully disobeying a lawful command (20 October 2004). The punishment consisted of a forfeiture of $278 pay; and, extra duty and restriction for 14 days. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; a self-authored statement; news article; press release; two pictures; Notice of Certification; Certification Letter; résumé; Conditional appointment letter, with allied documents; Suitability Reconsideration letter; FOIA request; transcripts; three character statements; and, Military Personnel Records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he graduated college with honors in only three years, while taking graduate courses and working part-time. He volunteered at make a wish and habitat for humanity; he helps professors with research projects; he tutored students after classes; went to a top 100-law school and passed the NY state bar exam; and, became a prosecutor. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. Paragraph 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 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 service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 28, Narrative Reason for Separation as Misconduct. The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12b. Soldiers processed for misconduct under this provisions will be assigned a Narrative Reason for Separation as Pattern of Misconduct. The applicant contends that he was very young and immature at the time. The record confirms the applicant's youth at the time of enlistment and an apparent lack of maturity. The record also shows the applicant's discrediting entries were incidents of a minor nature. While the applicant's misconduct and poor duty performance were a clear departure from acceptable Army standards, it appears the offenses were partially mitigated by youth and immaturity. The applicant contends he was a target of his unit and the subject to heightened scrutiny and gratuitous negative treatment, which made it impossible for him to stay out of trouble. Also, he did not consent to the blood test, which revealed his use of Psilocin. 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, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. 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 applicant requests a change to the characterization of his service in order to rejoin the Army. However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service. Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. Notwithstanding the administrative error, 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 11 March 2019, and by a 3-2 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 AR20180002600 1