1. Applicant's Name: a. Application Date: 5 July 2018 b. Date Received: 11 July 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel requests an upgrade of his general (under honorable conditions) discharge to honorable, a change to his narrative reason for discharge to secretarial authority, and a change to his reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that his discharge should be upgraded based on propriety and equity. The applicant contends that the urinalysis order by CPT H., was not based on probable cause in violation of the 4th Amendment and must be set aside and the government violated proper administrative notification procedures under AR 635-200, paragraph 2-4. 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 in- service. While the Chapter MSE lists PTSD, this was based on self-report and the medical record is void of an evaluation or any documentation for the diagnosis. Although a VA note listed PTSD, this was also per self-report. The subsequent evaluation at the VA PTSD clinic resulted in a diagnosis of Dysthymia and last contact in May 2018 indicates the applicant did not have PTSD. Lastly, the applicant is service connected for Neurosis, not PTSD. While liberal consideration was applied, the applicant's service connected diagnosis of Neurosis does not mitigate an inappropriate relationship with a married woman or use of steroids. Even if PTSD was considered, steroid use and an inappropriate relationship are not a natural progression or normal sequela of the diagnosis. The applicant is 30% service connected for Neurosis, i.e. Anxiety; Compensation and Pension (C&P) exam unavailable. Accordingly, there is no medical mitigation. In a records review conducted at Arlington, VA on 3 February 2021, 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: Misconduct (Drug Abuse) / AR 635- 200 / Chapter 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 3 January 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 June 2014 (2) Basis for Separation: The applicant was informed of the following reasons: for receiving a GOMOR from MG H., on 16 October 2012, for being a married man that engaged in an inappropriate personal and sexual relationship with the spouse of a Command Sergeant Major; Receiving an Article 15 on 4 April 2014, for making a false official statement and the illegal use of Anabolic Steroids as shown by a positive urinalysis on 14 June 2013. (3) Recommended Characterization: Other than Honorable Conditions (4) Legal Consultation Date: On 20 June 2014, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon being retained. The applicants intermediate and senior intermediate commander's recommended the applicant's service be characterized as general (under honorable conditions) and under other than honorable conditions. On 11 July 2014, having reviewed the separation packet of the applicant the separation authority disapproved the conditional waiver submitted by the applicant and determined that an administrative separation board would be appointed to determine if the applicant should be separated from the United States Army. (5) Administrative Separation Board: On 26 August 2014, the applicant was notified to appear before a Board of Officers to determine whether he should be discharged for misconduct-abuse of illegal drugs before the expiration of his term of service. On 16 September 2014, the applicant along with his legal counsel appeared before an Administrative Separation Board. The Board, having carefully considered the evidence before it, find that the allegation on 4 April 2014, that the applicant received an Article 15 for the illegal use of Anabolic Steroids as show by a positive urinalysis on 14 June 2013 was supported by a preponderance of the evidence; That the allegation on 4 April 2014 that the applicant received an Article 15 for making a false statement was supported by a preponderance of the evidence; and That the application that the engaged in an inappropriate personal and sexual relationship with the spouse of a Command Sergeant Major as it was shown by a General Officer Memorandum of Reprimand (GOMOR) issued by MG Harrison on 16 October 2012, was supported by a preponderance of the evidence. In view of the findings, the board recommended that the applicant be separated from the United States Army with a characterization of service of General (Under Honorable Conditions). (6) Separation Decision Date / Characterization: On 20 November 2014, the separation authority having review the separation packet on the applicant and consideration of all matters directed the applicant be separated from the Army prior to the expiration of his term of service with a characterization of service of General (Under Honorable Conditions). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 March 2011 / Indefinite b. Age at Enlistment / Education / GT Score: 36 / 2 years of college / 117 c. Highest Grade Achieved / MOS / Total Service: E-7 / 25B40, IT Specialist / 17 years, 7 months, 12 days d. Prior Service / Characterizations: RA, 22 May 1997 to 24 May 1999 / HD RA, 25 May 1999 to 9 October 2001 / HD RA, 10 October 2001 to 5 December 2005 / HD RA, 6 December 2005 to 4 March 2011 / HD e. Overseas Service / Combat Service: Korea, SWA, Italy / Afghanistan (8 January 2007 to 10 March 2007 and 7 September 2010 to 4 July 2011), Kuwait (18 February 1998 to 20 June 1998) f. Awards and Decorations: ARCOM-4, JSAM-2, AAM-3, MUC, VUA, AGCM-5, NDSM, ACM-2CS, AFEM, GWOTSM, KDSM, NOPDR-3, ASR, OSR-3, NATOMDL-2 g. Performance Ratings: 1 June 2010 to 31 May 2011, Fully Capable 1 June 2011 to 15 December 2011, Fully Capable 16 December 2011 to 15 December 2012, Fully Capable 16 December 2012 to 15 December 2013, Fully Capable 16 December 2013 to 14 June 2014, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand, dated 9 August 2012, which indicates the applicant was reprimanded for engaging in an inappropriate personal and sexual relationship with the spouse of a Command Sergeant Major. His interactions with her involved exchanging test messages and photo messages of an explicit nature and during his affair, he also engaged in oral sex with her in a public place located on-post. Unsworn Oral Statement Referencing Steroids Possession by Mrs. R. (wife of the applicant), dated 19 June 2013. Electronic copy of the DD Form 2624, dated 27 August 2013, reflects the applicant tested positive for STE during a Probable Cause (PO) urinalysis testing conducted on 14 June 2013. CID Report, dated 1 November 2013, which indicates the applicant was the subject of investigation for the wrongful use of a controlled substance, wrongful possession of a controlled substance, and false official statement. FG Article 15 dated 4 April 2014, for with intent to deceive making to CPT M.H., an official statement, to wit:" the medicine and the supplements were prescribed by the Zama Clinic," or words to that effect, which statement was false in that he was not prescribed Anabolic Steroids by the Camp Zama Medical Clinic, and was then known by him to be so false on 14 June 2013, and wrongfully using Anabolic Steroids a schedule III controlled substance in violation of Article 112a, UCMJ on 14 June 2013. The punishment consisted of forfeiture of $2,100.00 pay, extra duty and restriction for 45 days, and a written reprimand. General Officer Memorandum of Reprimand, dated 5 April 2014, indicating the applicant was reprimanded for his usage of Anabolic Androgenic Steroids and his false statement to CPT M.H. The applicant's rebuttal to the Administrative Separation Boards recommendation to separation him with a general (under honorable conditions) discharge. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 15 April 2014, indicates the applicant was diagnosed with an Axis I for PTSD. The applicant was screened for PTSD with a score of 72 (positive). It was noted that the applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; 11-page legal brief to include commander's report, memo from CPT H., Article 15 report, separation notification, board findings, and board transcript; and DD Form 214 for the period of service under review. 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 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 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a or 14-12b as appropriate. 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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" 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 through legal counsel requests an upgrade of his general (under honorable conditions) discharge to honorable, a change to his narrative reason for discharge to secretarial authority, and a change to his reentry eligibility (RE) code. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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. Furthermore, by violating the Army's policy not to possess or use illegal drugs, the applicant compromised the trust and confidence placed in a noncommissioned officer. The applicant, as a noncommissioned officer, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. 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 evidence of record shows the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." 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 appropriate RE code is 4. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending that the urinalysis order by CPT H., was not based on probable cause in violation of the 4th Amendment and must be set aside and the government violated proper administrative notification procedures under AR 635-200, paragraph 2-4. The applicant's contentions were noted; however, the evidence of records shows the applicant was notified on 18 June 2014, that action to separated him for Misconduct-Abuse of Illegal Drugs was being initiated. The applicant was informed of the following reasons: for receiving a GOMOR from MG H., on 16 October 2012, for being a married man that engaged in an inappropriate personal and sexual relationship with the spouse of a Command Sergeant Major; and receiving an Article 15 on 4 April 2014, for making a false official statement and the illegal use of Anabolic Steroids as shown by a positive urinalysis on 14 June 2013. As previously noted; 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. Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a or 14-12b as appropriate. The service record indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 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. However, this service was determined not to be sufficiently mitigating to warrant the characterization of service of honorable at the time of discharge as shown by the repeated incidents of misconduct, General Officer's Memorandum's of Reprimand and the documented actions under Article 15 of the Uniform Code of Military Justice. 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 Also it should be noted, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct (drug offense). It appears the applicant's generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. 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 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 3 February 2021, 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 / 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 AR20180013280 7