1. Applicant's Name: a. Application Date: 17 May 2019 b. Date Received: 20 June 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests, through counsel, an upgrade to honorable and a narrative reason change. The applicant's counsel seeks relief contending, in effect, the applicant medical records demonstrates he suffered from substance abuse due to an opioid addition as a result of being prescribed opioid medication due to injuries and surgeries suffered during his military service; the applicant suffers from social phobia as a result of conditions suffered during his period of military service; and under the standards in the Hagel, Carson, and Kurta Memorandum, the applicant status should be upgraded to honorable. In a records review conducted on 15 October 2021, and by a 5 - 0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service and post service accomplishments. 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. Please see Section 9 of this document for more detail regarding the Board's decision. (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: 19 February 2016 c. Separation Facts: (1) DD Form 458 (Charge Sheet): dated 21 December 2015, reflects the applicant was charged with being absent without authority from on or about 21 October 2015 until he was apprehended on or about 15 December 2015; stole an Advanced Combat Helmet, Improved Outer Tactical Vest with two ballistic plates, a ruck sack, and an assault pack, military property, of a value more than $500.00, the property of the U.S. Army; wrongfully used cocaine between on or about 20 September 2015 and on or about 24 September 2015; and wrongfully used heroin between on or about 22 September 2015 and on or about 24 September 2015. (2) Legal Consultation Date: 29 December 2015 (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: 29 January 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 May 2013 / 4 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25L, Cable System Installer/Maintainer / 2 years, 4 months, 23 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: GWOTSM, ASR, Parachutist Badge g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: See paragraph 3c(1) The applicant was counseled on several occasions for various acts of misconduct. i. Lost Time / Mode of Return: AWOL X 121 days (21 October 2015 - 19 February 2016) / Apprehended j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's counsel provides medical records reflecting the applicant was diagnosed with Social Phobia in July 2014. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, Counsel's Brief with 14 exhibits (127 total pages) 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he had achieved eight months of sobriety and is on track to complete a recovery program. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides 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), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides 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, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification 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. (2) 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. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. e. 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 "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. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant, through counsel, requests an upgrade to honorable and a narrative reason change. The evidence of record confirms the applicant was charged with the commission of several offenses 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 applicant's counsel contends the applicant's medical records demonstrates he suffered from substance abuse due to an opioid addition as a result of being prescribed opioid medication due to injuries and surgeries suffered during his military service. The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. The applicant's counsel also contends the applicant suffers from social phobia as a result of conditions suffered during his period of military service. The applicant's counsel provides documentation that supports a diagnosis of in service social phobia. The applicant's counsel further contends under the standards in the Hagel, Carson, and Kurta Memorandum, the applicant status should be upgraded to honorable. The applicant's counsel requests the applicant narrative reason changed. However, the applicant was separated under the provisions of Army Regulation 635-200, Chapter 10, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this chapter is "In Lieu of Trial by Court-Martial" and the separation code is "KFS." 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 regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found the applicant was diagnosed with Social Anxiety Disorder, Unspecified Depressive Disorder, Dysthymic Disorder, Adjustment Disorder, and Anxiety Disorder by the military. Post-service, the VA has diagnosed Social Anxiety Disorder, Mood Disorder, Anxiety Disorder, childhood PTSD, and Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Social Anxiety Disorder, Unspecified Depressive Disorder, Dysthymic Disorder, Adjustment Disorder, and Anxiety Disorder. While childhood PTSD has been noted post-service, documentation does not reflect any presence of trauma symptoms in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's behavioral health diagnoses do not mitigate the basis for separation (AWOL, substance abuse, or larceny). However, the Board considered a compassionate upgrade given the extended use of prescribed addictive pain medication, which should not have occurred. (4) Does the condition or experience outweigh the discharge? Partially. The Board found that the cause for separation is partially mitigated for compassionate reasons since the applicant was prescribed addictive pain medication from November 2013 to August 2015 by military physicians. The applicant's offenses of AWOL, larceny, and wrongful us of cocaine and heroin are not medically mitigated, as there is no nexus between these behaviors and the Social Anxiety Disorder, Unspecified Depressive Disorder, Dysthymic Disorder, Adjustment Disorder, and Anxiety Disorder. b. Response to Contentions: (1) The applicant's counsel contends the applicant's medical records demonstrate he suffered from substance abuse due to opioid addiction as a result of being prescribed opioid medication due to injuries and surgeries sustained during his military service. The Board focused on the applicants opiate prescription use from November 2013 to August 2015 from military physicians and the board raised an issue for compassion. The Board granted partial relief. (2) The applicant's counsel also contends the applicant suffers from social phobia due to conditions suffered during his period of military service. The applicant's counsel provides documentation that supports a diagnosis of in-service social phobia. The Board considered the documentation and contention. (3) The applicant's counsel further contends under the standards in the Hagel, Carson, and Kurta Memorandum, the applicant's status should be upgraded to honorable. The Board applied the Hagel, Carson, and Kurta Memorandums during deliberation. The Board considered, but found an upgrade to honorable not supported by the evidence of record. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, including AWOL, larceny, and the wrongful use of cocaine and heroin, was not sufficiently meritorious to warrant an honorable discharge. (4) The applicant's counsel requests the applicant's narrative reason be changed. The applicant was separated under the provisions of Army Regulation 635-200, Chapter 10, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this chapter is "In Lieu of Trial by Court-Martial" and the separation code is "KFS." The record confirms the applicant's reason was appropriate because the quality of the applicant's 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 by the AWOL, larceny, and the wrongful use of cocaine and heroin, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. The Board determined that the characterization of service was inequitable based on the applicant's length of service and post service accomplishments. 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. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contentions that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant was prescribed addictive pain medication from November 2013 to August 2015 by military physicians. Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190010320 1