1. Applicant's Name: a. Application Date: 17July 2018 b. Date Received: 23 July 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. The applicant seeks relief contending, in pertinent part and in effect, during the period of the incidents that led to discharge, the applicant was young and made some bad decisions and fully regrets it. The bad decisions were the result of trying to beat PTSD independently. The applicant was arrested for theft and is current in the Veterans Court Program in Georgia. 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 no clinical information on the applicant. In summary, the applicant does not have a mitigating Behavioral Health condition for the misconduct which led to separation. In a records review conducted at Arlington, VA on 14 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: 4 August 2011 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 11 July 2011, the following charges were preferred, with recommendations to refer to trial by a special court-martial empowered to adjudge a bad conduct discharge: Charge I: Violation of Article 86, UCMJ, for failing to go to his appointed place of duty at the prescribed time on 27 April 2011. Charge II: Violation of Article 92, UCMJ, for failing to obey a lawful order by wrongfully possessing a prohibited substance on 13 June 2011. Charge II (sic): Three specifications of violating Article 112a, UCMJ, for Specification 1: wrongfully using oxycodone, a Schedule II controlled substance between 24 February 2011 and 2 March 2011. Specification 2: wrongfully using oxycodone, a Schedule II controlled substance between 22 April 2011 and 29 April 2011. Specification 3: wrongfully using oxycodone, a Schedule II controlled substance between 19 May 2011 and 26 May2011. Charge III: Violation of Article 121, UCMJ, for stealing a laptop computer, property of PFC J.M.D. on 13 June 2011. (2) Legal Consultation Date: 19 July 2011 (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: 25 July 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 April 2008 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19D10, Cavalry Scout / 3 years, 4 months, 4 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (15 December 2009 to 4 December 2010) f. Awards and Decorations: NDSM; ICM-CS; GWOTSM; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: MP Report, dated 20 June 2009, indicates the applicant was the subject of an investigation for larceny of AAFES property. Negative counseling statements for wrongfully using a prescription drug, Oxycodone; testing positive for a controlled substance; testing positive for a second time; committing larceny; failing to be at his appointed place of duty at the prescribed time on several occasions; being detained for wrongful possession of a controlled substance, Spice; and possessing a computer laptop that was reported stolen. An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 17 March 2011, indicates the specimen collected on 2 March 2011, on a "PO" (Probable Cause) basis, provided by the applicant, tested positive for Oxycodone. An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 6 May 2011, indicates the specimen collected on 29 April 2011, on a "IO" (Command, Policy) basis, provided by the applicant, tested positive for Oxycodone. Three MP Reports, dated 7 May 2011, 18 May 2011, and 27 May 2011, indicate the applicant was the subject of an investigation for wrongfully using oxycodone as determined by urinalysis testing. An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 6 May 2011, indicates the specimen collected on 26 May 2011, on a "IU" (Inspection, Unit) basis, provided by the applicant, tested positive for Oxycodone. FG Article 15, UCMJ, dated 9 June 2011, for failing to go to his appointed place of duty at the prescribed time on 27 April 2011, and wrongfully using oxycodone, a Schedule II controlled substance on two separate occasions between 24 February 2011 and 2 March 2011, and between 22 April 2011 and 29 April 2011. The imposed punishment, if any, is in NIF. MP Report, dated 13 June 2011, indicates the applicant was the subject of an investigation for larceny of private property. Civilian Police Report, dated 26 June 2011, indicates the applicant was arrested and the subject of an investigation for "Theft by Taking, Criminal Trespassing, Possession of Tools, and Possession and use of other drug paraphernalia. Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: None recorded on DD Form 214 / NA j. Diagnosed PTSD / TBI / Behavioral Health: There is no specific diagnosis available; however, the County Veterans Court, dated 12 July 2018, indicates the applicant is in a Veterans Treatment Court or program. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 17 July 2018, and County Veterans Court letter, dated 12 July 2018. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, "In Lieu of Trial by Court-Martial." The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 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. The applicant's available record of service, and 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. Hrecord 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. 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's contentions regarding his behavioral health issues which led to the incidents of misconduct, were carefully considered. A careful review of the available record and the applicant's documentary evidence provided no behavioral health diagnoses, and the applicant indicated that they were contributing factors that led to his misconduct. If the Board determines, based on the available record, the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. However, if there are no documentary evidence, and if the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., documentary evidence of his medical or behavioral health diagnoses, specifically relating to PTSD diagnosis) for the Board's consideration because they are not available in the official record. The applicant contends that he was young and immature at the time of the discharge. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. A review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant's command. It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 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 14 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 AR20180011692 1