1. Applicant's Name: a. Application Date: 7 January 2019 b. Date Received: 10 January 2019 c. Previous Review: 8 March 2013, AR20120019185 (Reconsideration based on PTSD claim) d. Representative: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in pertinent part and in effect, prior to discharge, the applicant was suffering from an "undiagnosed Posttraumatic Stress Disorder with Anxiety, Depression, Rage," which led to abusing controlled substances in an effort to self- medicate. The applicant successfully completed a four-month substance abuse/mental health treatment program, documented by a certificate of completion. Applicant-authored statement detailed the events surrounding a combat tour and experiences, assignments, and the circumstances and events that led to the AWOL offenses. 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 Major Depressive Disorder (MDD). The VA has diagnosed the applicant with PTSD and Major Depressive Disorder. 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 14 June 2019, and by a 5-0 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, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnose of OBH and PTSD). 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: 3 February 2006 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 4 January 2006, the applicant was charged with the following: Charge I: two specifications of violating Article 86, UCMJ: Specification 1: for absenting himself from his unit without authority on 27 April 2005, and remained absent until 25 May 2005. Specification 2: for absenting himself from his unit without authority on 26 July 2005, and remained absent until 12 October 2005. (2) Legal Consultation Date: 5 January 2006 (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: In January 2006 (date illegible) / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 November 2002 / 4 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11C10, Indirect Fire Infantryman / 3 years, 2 months, 19 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (30 October 2003 to 1 November 2004 f. Awards and Decorations: ARCOM; NDSM; ICM; GWOTSM; ASR; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 3 June 2005, indicates the specimen collected on 25 May 2005, on an "CO" (Command Directed or competency for duty) basis, provided by the applicant, tested positive for Cocaine (page 51 of separation file). Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: 106 days (AWOL: on 27 April 2005, until 24 May 2005, for 28 days, and on 26 July 2005, until 11 October 2005, for 78 days) / DA Forms 4187 reporting duty statuses of the applicant and the Charge Sheet, reflect the applicant's unit, which indicate the applicant returned to his unit after each AWOL period. j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Monmouth Medical Center Behavior Health Physician Documentation, dated 28 May 2018, indicates PTSD, history of substance abuse, and suicidal thoughts were confirmed, and the applicant's diagnosis was "Major depressive disorder, recurrent episode with anxious distress," PTSD, "benzodiazepine use disorder," and "opioid use disorder on MMTP." Preferred Behavioral Health Group letter, dated 10 December 2018, states, the applicant, who was homeless and struggling with substance use, was provided shelter and referred to detox and long-term addition treatment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 7 January 2019, with cover letter and list of attachments; DD Form 214; applicant- authored statement; letter, dated 10 December 2018; BH Physician Documentation, dated 28 May 2018; Certificate of Achievement, dated 21 December 2018; Statement in Support of Claim, dated 1 May 2018, rendered by applicant's girlfriend; Statement in Support of Claim, dated 23 May 2018, rendered by the applicant's former squad leader; and Statement in Support of Claim, dated 7 May 2018, rendered by the applicant's sister. Additional evidence: Character reference/supporting statement, dated 29 January 2019. 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. Further, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, section II.) However, for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper, and when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. 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 general (under honorable conditions) or 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. His record documents no acts of significant achievement or valor, and did not support the issuance of an honorable or a general (under honorable conditions) discharge by the separation authority at the time of 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 applicant contends he is entitled to an upgrade of his discharge because of mitigating circumstances which contributed to his misconduct, specifically, his claim that behavioral health and family issues, such as the sudden passing of his mother, resulted in his discharge. While the applicant may believe his stress at home was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. The applicant's contentions regarding his behavioral health issues which involved suffering from an undiagnosed PTSD with Anxiety, Depression, and Rage, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues and PTSD symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines 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. The applicant's documentary evidence further indicate his status as being homeless. However, eligibility for housing supportive program benefits for Veterans does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. The evidence of the record further confirms that on 25 May 2005, the applicant was given a command directed or competency for duty urinalysis (CO), subsequent to his return from a period of being AWOL, and he tested positive for cocaine. Although there is no record of any UCMJ action for the positive urinalysis, a charge reflecting "Charge II" for violating Article 112a, UCMJ, for wrongfully using cocaine between 25 April 2005 and 25 May 2005, was preferred on 4 January 2006; however, the same specific charge was crossed out, initialed and dated 5 January 2006. Additionally, a memorandum, dated 6 June 2005, rendered by an Alcohol and Drug Control Officer to the unit commander, providing the positive results of the urinalysis collected on 25 May 2005, from the applicant, further indicated that "[[c]ompetency for duty tests (test basis code CO) may be used as basis for administrative action to include separation, but shall not be used as basis for an action under the UCMJ," or be used to characterize a Soldier's service, according to AR 600-85, then paragraph 6-4a(1), currently paragraph 10-12a(1). Further, current AR 600-85, paragraph 10-2e, stipulates that a "commander may order a urinalysis based upon reasonable suspicion to ensure the Soldier's fitness for duty even if the urinalysis is not a valid inspection and no PO exists. However, the results of such a test may be used only for limited purposes." However, based on the events surrounding the timing of the drug test heavily weighs toward finding that the drug test is truly an "IO" test. Conversely, although the deletion of the drug charge suggests that it may have been understood the "CO" test to be protected limited use evidence and unusable in disciplinary proceedings (see AR 600-85, paragraph10-12a), it would also indicate, at minimum, that the Staff Judge Advocate (SJA) failed to remove the protected limited use evidence from the separation packet. However, the presumption of regularity operates to presume an SJA review had occurred, consistent with AR 635-200, paragraph 10-3. In essence, too much speculation is required to afford any significant weight to the deletion of the drug charge. The applicant has not raised limited use despite the issue being clearly addressed in the prior decision. Thus, the probative evidence of record supports that the "CO" test was truly a mislabeled "IO" test and does not represent protected limited use evidence. In consideration of the applicant's service accomplishments and quality of his service prior to the incident of misconduct, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. 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 14 June 2019, and by a 5-0 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, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnose of OBH and PTSD). 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 AR20190000945 1