1. Applicant's Name: a. Application Date: 19 July 2018 b. Date Received: 10 August 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, as a result of his mental trauma, he began taking opioids being handed out by the medics to Special Forces in Afghanistan. He developed a substance abuse problem, which led to the events that resulted in his discharge. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, AHLTA, and JLV, the applicant was diagnosed with the behavioral health conditions of Anxiety Disorder, Drug and Alcohol Dependence and Partner Relational Problem. However, due to the nature of the behavioral health conditions, they do not mitigate the offenses of adultery, drug abuse or dereliction of duty. In a records review conducted at Arlington, VA on 10 October 2018, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, a prior period of honorable service, an incapacity to serve, and the circumstances surrounding the discharge (i.e. post-service diagnosis of behavioral health issues). 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: In Lieu of Trial by Court-Martial / AR 635- 200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 15 June 2010 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 20 May 2010, the applicant was charged with: Charge 1: Violation of the UCMJ, Article 92: Specification 1: In that the applicant did, on or about 28 March 2010, violate a lawful general regulation, to wit: paragraph 4-14b, Army Regulation 00-20, dated 18 March 2008 (RAR 002, dated 30 November 2009), by engaging in sexual intercourse with his subordinate Soldier, PFC X, such conduct being of a nature to compromise, or appear to compromise, the integrity of supervisory authority or the chain of command. Specification 2: In that the applicant did, on divers occasions, between on or about 27 March 2010 and 31 March 2010, violate a lawful general regulation, to wit: paragraph 4-2p, Army Regulation 600-85, dated 2 February 2009 (RAR 001, dated 2 December 2009), by wrongfully smoking "spice." Specification 3: In that the applicant did, on or about 27 March 2010, violate a lawful general regulation, to wit:*paragraph 4-14b, Army Regulation 600-20, dated 18 March 2008 (RAR 002, dated 30 November 2009), by wrongfully using his position as the noncommissioned officer in charge of a funeral detail in attempting to induce subordinate members of the detail, SPC X and PFC X, to use their personal funds to pay for a hotel room. Specification 4: In that the applicant, who knew of his duties, between on or about 27 March 2010 and on or about 31 March 2010, was derelict in the performance of those duties in that he willfully failed to lead a funeral detail back to Fort Bragg, North Carolina in a timely manner, as it was his duty to do by wrongfully ordering the detail to make unauthorized stops at a hotel and a bar. Charge II: Violation of the UCMJ, Article 134: Specification 1: In that the applicant, a married man, did on or about 28 March 2010, wrongfully have sexual intercourse with PFC X, a woman not his wife. Specification 2: In that the applicant, did on or about 27 March 2010, wrongfully solicit PFC X to violate a general regulation, to wit: paragraph 4-2p, Army Regulation 600-85, dated 2 February 2009 (RAR 001, dated 2 December 2009), by wrongfully smoking "spice." (2) Legal Consultation Date: (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: 4 June 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 October 2007 / 6 years b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 125 c. Highest Grade Achieved / MOS / Total Service: E-6 / 35L30, Counterintelligence Agent / 6 years, 2 months, 22 days d. Prior Service / Characterizations: RA, 24 March 2004 - 18 October 2007 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (2 October 2007 - 3 July 2008), Iraq (26 February 2005 - 4 November 2005) f. Awards and Decorations: ARCOM, AAM, AGCM-2, NDSM ACM-2CS, GWOTEM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: 1 July 2007 - 30 June 2008 / Fully Capable 1 July 2008 - 15 February 2009 / Fully Capable 16 February 2009 - 15 February 2010 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Serious Incident Report, dated 31 March 2010, reflects as part of the funeral detail, consisting of the applicant, SPC X and PFC X, who were tasked for funeral detail for the month of March, were carpooling together in a government vehicle to and from locations. During the return trip from a funeral detail on 31 March 2010, 1SG P received a phone call from his Soldier, SPC X, regarding SSG X directing him to stop at a bar, and after about two hours, they were still at the bar. Upon notification, command team called element to return to Fort Bragg. The Command team met the three Soldiers at the vehicle, secured the vehicle, and escorted the three Soldiers to the PMO for a breathalyzer. It was also reported by SPC X that the two other Soldiers had been smoking "spice" in his presence. Military Police Investigations (MPI) had an ongoing investigating regarding allegations of similar activities SPC X reported on Monday 29 March 2010 that occurred on Saturday 27 March 2010. (This event also included a possible breaking and entering, as well as theft of alcohol, in which CID is investigating / monitoring local police reports from the area.) The vehicle was searched, and a pipe and substance was found. On the spot test of substance for THC was negative. SPC X blew a 0.00 and provided information to MPI on the events that occurred. The applicant blew a 0.03 and was questioned by MPI; he requested legal representation. PFC X blew a .08 and was also questioned by MPI. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Consultation Sheet, dated 5 July 2008, reflects the applicant was diagnosed with Opioid Dependence; and, Adjustment Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Orders; and, medical treatment records. 6. POST SERVICE ACCOMPLISHMENTS: 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 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. 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. 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 discharge. The applicant contends that he was suffering from mental trauma, which affected his behavior and led to his discharge. However, the service record contains no evidence of a mental trauma diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant did provide evidence that he was diagnosed with an opioid dependence. 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 10 October 2018, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, a prior period of honorable service, an incapacity to serve, and the circumstances surrounding the discharge (i.e. post-service diagnosis of behavioral health issues). 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 AR20180011605 1