1. Applicant's Name: a. Application Date: 19 December 2018 b. Date Received: 27 December 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, that the discharge should be upgraded due to both procedural defects and equitability. The applicant contends the discharge was erroneous at the time and has served its purpose. The applicant was mentally ill and the behavioral problems were mostly due to psychosis. The applicant was using drugs because of not receiving medication even though the applicant tried numerous times to get treatment. 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 Personality Disorder, Substance Use Disorders, and an Adjustment Disorder. The applicant does not currently have a service-connected rating from the VA. The VA has diagnosed the applicant with Bipolar II Disorder with psychosis, Panic Disorder with Agoraphobia, and PTSD. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 29 July 2019, 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: Fraudulent Entry / AR 635-200, Chapter 7, SEC V / JDA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 21 December 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 November 2006 (2) Basis for Separation: The applicant was informed of the following reasons: for procuring an enlistment through deliberate material misrepresentation, omission, or concealment of information, to wit; if known by the Army at the time of enlistment might have resulted in rejection. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 9 November 2006 (5) Administrative Separation Board: 9 November 2006 / The applicant waved consideration of his case by an administrative separation board (6) Separation Decision Date / Characterization: 7 December 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 November 2005 / 3 years, 20 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 128 c. Highest Grade Achieved / MOS / Total Service: E-2 / 19D10, Cavalry Scout / 1 year, 1 month, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, submitted by the applicant shows he was the subject of investigation for wrongful distribution of cocaine, wrongful introduction with intent to distribute cocaine, wrongful possession with intent to distribute cocaine, wrongful use of cocaine, and failure to obey general order. Pretrial Confinement Charge Sheet, dated 13 July 2006 submitted by the applicant for failure to go at the time prescribed to his appointed place of duty on 12 June 2006 and being AWOL from his unit from 12 June 2006 until 14 June 2006; wrongful use of cocaine 21 June and 24 June 2006, wrongful distribution of 9 grams of cocaine 24 June 2006, and wrongful use of marijuana 21 May 2006 and 21 June 2006. Army Substance Abuse Program (ASAP) Enrollment, showing the applicant was command referred for AWOL and admitted use of a controlled substance (marijuana). Several negative counseling statements for various action of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, documents submitted by the applicant show he was evaluated on 4 August 2006, by a Sanity Board and was diagnosed with an Axis I for Polysubstance Dependence (304.80) hallucinogens dependence (304.50), Cannabis Dependence (304.30), Cocaine Dependence (304.20), Alcohol Abuse (305.00), Amphetamine Abuse (305.7); Axis II for Antisocial Personality Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; statements; military files (i.e., enlistment contract, separation file, court-martial documents); medical files/documents (request for sanity board evaluation), medical documents from the Blue Ridge Behavioral Healthcare, information relating to medical issues the applicant suffered with prior to his enlistment; legal documents relating to dismissal of charges against him; LOR's; 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 (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7, paragraph 7-17 provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention. Soldiers separated under Chapter 7 may be awarded an honorable discharge, general (under honorable conditions) discharge, or a discharge under other than honorable conditions. If in an entry level status, the discharge will be uncharacterized. 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 record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate due to his procuring an enlistment through deliberate material misrepresentation, omission, or concealment of information, to wit; if known by the Army at the time of enlistment might have resulted in rejection. The applicant was pending Court-Martial for diverse charges. These charges were dismissed in their entirety for lack of jurisdiction. The applicant was diagnosed with a serious mental condition, psychosis that was present at the time of enlistment. His mental health condition was entirely disqualifying for service. 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 seeks relief contending that his discharge should be upgraded due to both procedural defects and equitability. The applicant contends the discharge was erroneous at the time and has served its purpose. He contends he was mentally ill and he wasn't as ill as he normally was and if it hadn't been whatever that broke when he got to his permanent duty station he would have served fully. His behavioral problems were mostly due to psychosis or using drugs to mask the side effects he was having due to the illness because he wasn't receiving medication even though he tried numerous times to get treatment. The applicant's contentions were noted; however, as noted previously the applicant was diagnosed with a serious mental condition, psychosis that was present at the time of enlistment. The evidence shows the enlistment would not have occurred had the relevant facts been known by the Government or had appropriated directives been followed at the time of enlistment. Further he was notified of his reason for separation for procuring an enlistment due to deliberate material misrepresentation, omission, or concealment of information, to wit; if known by the Army at the time of enlistment might have resulted in rejection. 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 the fact of his case. 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 29 July 2019, 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 AR20190000335 1