1. Applicant's Name: a. Application Date: 7 April 2019 b. Date Received: 17 May 2019 c. Counsel: None 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 pertinent part and in effect, was heavy into illegal drugs to cope with PTSD. Since discharge, the applicant has been sober. The applicant attends weekly therapy for drug use and PTSD. 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 with Anxious Mood, Alcohol Dependence, Anxiety Disorder, Bereavement, Chronic PTSD, mTBI, Nicotine Dependence, Nephrolithiasis, Opioid Dependence, and Opioid Withdrawal. The applicant is 00% service-connected; 70% for PTSD from the VA. The VA has also diagnosed the applicant with Opioid Use Disorder, Alcohol Use Disorder, and Antisocial Personality Disorder. In summary, the applicant's BH diagnosis that is partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 22 April 2020, 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: 23 August 2013 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 10 February 2013, the applicant was charged with the following: Charge I: Two Specifications of violating Article 90, UCMJ, for disobeying his superior commissioned officer on two separate occasions, between 14 December 2012 and 8 January 2013, and between 6 August 2012 and 13 December 2013. Charge II: Violation of Article 92, UCMJ, for failing to obey a lawful general order on divers occasions between 31 January 2013 and 1 February 2013. Charge III: Five Specifications of violating Article 112a, UCMJ, for wrongfully distributing Ambien, a Schedule IV controlled substance on 22 September 2017; wrongfully using Oxycodone, a Schedule II controlled substance on two separate occasions on 29 November 2012 and 12 December 2012; and wrongfully using Oxymorphone, a Schedule II controlled substance on two separate occasions, on 29 November 2012 and 12 December 2012. Charge IV: Two Specifications of violating Article 121, UCMJ, for stealing money, of a value of more than $500 between 1 May 2012 and 13 December 2012, property of USAA, and wrongfully obtaining by false pretense, money of a value of more than $500 between 1 May 2012 and 13 December 2012, property of COL R.W.W. Charge V: Three Specifications of violating Article 123 (actually, Article 105?), UCMJ: on two separate occasions, between 1 May 2012 and 13 December 2012, with intent to defraud, for affixing the signatures of Col R.W.W. as an endorsement to certain checks and to DD Form 1289, which said check and writing would, respectively, if genuine, apparently operate to the legal harm of another; and uttering words to wit: [R.W.W.] and FW 2260331, which said uttering would, if genuine, apparently operate to the legal harm of another. Charge VI: Four Specifications of violating Article 134, UCMJ, for wrongfully having sexual intercourse with, K.P., a woman not his wife in October 2012; soliciting SPC J.F.L. to wrongfully use or possess Percocet, a Schedule II controlled substance on 9 December 2012; wrongfully distributing Percocet, a Schedule II controlled substance on 3 February 2011; and wrongfully and willfully, with the intent to defraud, impersonate a commissioned officer of the US Army, by ordering controlled narcotic prescription and purporting to be Col R.W.W. over the telephone on 13 December 2012. On 10 February 2013, the applicant was charged with the following additional charge: Additional Charge: Three Specifications of violating Article 112a, UCMJ, for wrongfully using Heroin on 28 February 2013; wrongfully using Morphine on 14 March 2013; and wrongfully possessing Heroin on 15 March 2013. (2) Legal Consultation Date: 12 August 2013 (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: 15 August 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 October 2010 / 6 years b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 68W10, Health Care Specialist / 10 years, 11 months, 11 days (DD Form 214 has incorrect net service) d. Prior Service / Characterizations: USN (20 February 2001 to 1 March 2002) / HD Break in Service (2 March 2002 to 24 September 2004) / NA USAR (25 September 2003 to 18 July 2005) / HD USAR (19 July 2005 to 4 January 2007) / NA IWS shows applicant in Active Duty Training (5 January 2007 to 17 July 2007) / NA RA (18 July 2007 to 28 October 2010) / HD e. Overseas Service / Combat Service: Hawaii, SWA (Iraq (7 December 2007 to 19 February 2009) f. Awards and Decorations: AAM; AGCM; NDSM; ICM-CS; GWOTEM; GWOTSM; ASR; OSR; AFRM-M DEV; NSSDR; VUA; CMD g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(1). Two DA Forms 4187 (Personnel Action) show the applicant's change in duty status: Dated 22 March 2013, from PDY to Confinement, effective 22 March 2013 Dated 20 August 2013, from Confinement to PDY, effective 16 August 2013 i. Lost Time / Mode of Return: None / NA (None recorded on DD Form 214) j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 7 April 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 honorable. The applicant's available record of service and the issues 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 other 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 was using illegal drugs to cope with his PTSD. However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any documentary evidence of any PTSD or behavioral health diagnosis by a competent medical authority. 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 any PTSD or behavioral health diagnosis by a competent medical authority) for the Board's consideration because they are not available in the official record. 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 22 April 2020, 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 AR20190007454 1