1. Applicant's Name: a. Application Date: 11 September 2019 b. Date Received: 11 September 2019 c. Previous Records Review: 9 March 2018, AR20160019627 d. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable, and to change the narrative reason for discharge. The applicant seeks relief, in effect, did not provide any issues of equity or propriety for the Board's consideration with the application. 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, Alcohol Abuse, Alcohol Dependence, Amphetamine Dependence, Concussion, Cognitive Disorder, Major Depressive Disorder, Intermittent Explosive Disorder, Psychoses, Antisocial Personality Disorder, Unspecified Psychoactive Substance Dependence, and Bipolar I Disorder. The applicant is 80% service-connected; 70% for PTSD from the VA. The VA has also diagnosed the applicant with Alcohol Abuse, Alcohol Induced Disorder, Other Recurrent Depressive Disorder, Homelessness, Major Depression, and Alcohol Dependence. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. Due to COVID-19, a telephonic personal appearance hearing was conducted at Arlington, VA on 23 March 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 600-8-24, Paragraph 3-13 / DFS / NA / Under Other Than Honorable Conditions b. Date of Discharge: 27 April 2015 c. Separation Facts: (1) DD Form 458, Charge Sheet: On 2 January 2014, the applicant was charged with the following: Charge I: Violation of Article 80, UCMJ, for attempting to wrongfully introduce 294 tablets of Tramadol, each with 50 mg dosage, a schedule IV controlled substance onto an Armed Forces installation in Kosovo, on 30 August 2014. Charge II: Violation of Article 81, UCMJ, for conspiring with CW4 L.B.S. to commit an offense of wrongfully introducing Tramadol, and effecting the conspiracy by placing the Tramadol in the cargo pockets of CW4 L.B.S. upon entering an Armed Forces installation in Kosovo. Charge III: Violation of Article 86, UCMJ, for absenting himself without authority from his unit in Kosovo on 30 August 2014, and remaining absent until 31 August 2014. Charge IV: Two specifications of violating Article 92, UCMJ, for violating a general Order on 30 August 2014, by wrongfully possessing and consuming alcoholic beverages, and disobeying an order on 30 August 2014, by purchasing medicine and controlled substances from Kosovo pharmacies, respectively of Specifications 1 and 2. Charge V: Three specifications of violating Article 112a, UCMJ, by wrongfully possessing 294 tablets of Tramadol, each with 50 mg dosage, a schedule IV controlled substance, wrongfully using Tramadol, a schedule IV controlled substance, and wrongfully using Amphetamine, a schedule III controlled substance on 30 August 2014, respectively of Specifications 1, 2, and 3. (2) Basis for Separation: Pursuant to applicant's request for discharge under the provisions of Chapter 3, Paragraph 3-13, AR 600-8-24, Resignation for the Good of the Service in lieu of Trial by General Court-Martial. (3) Recommended Characterization: Under Other Honorable Conditions discharge (4) Legal Consultation Date: 3 October 2014 (5) Separation Decision Date/Characterization: On 20 April 2015, the Deputy Assistant Secretary of the Army (Review Boards) accepted and approved the resignation for the good of the service in lieu of trial by a general court-martial / Under Other Than Honorable Conditions. 4. SERVICE DETAILS: a. Date / Period of Active Duty Orders: 21 November 2013 / Active Duty for 365 days, and concurrent TCS Orders for 6 January 2014 / 319 days, Operation Joint Guardian (KFOR) b. Age at Period of AD / Education / GT Score: 34 / Bachelor of Science / NA c. Highest Grade Achieved / MOS / Total Service: CW2 / 153D0, UH-60 Pilot / 14 years, 2 days d. Prior Service / Characterizations: USAR (26 April 2001 to 19 August 2001) / NA IADT (20 August 2001 to 8 February 2002) / HD USAR (9 February 2002 to 6 August 2003) / NIF ARNG (7 August 2003 to 22 August 2004) / HD Appointment - ARNG (23 August 2004 to 5 April 2007) / NA Ordered to AD ARNG (6 April 2007 to 9 September 2008) / HD ARNG (10 September 2008 to 2 October 2009) / NA OIF (3 October 2009 to 21 December 2010) / HD ARNG (22 December 2010 to 20 November 2013) / NA e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (5 August 2007 to 27 July 2008), (13 December 2009 to 21 September 2010), Kosovo (6 January 2014 to 23 December 2014) f. Awards and Decorations: MSM; AM-2; NDSM; ICM-2CS; GWOTSM; ASR; OSR-2; AFRM-M DEV; USA/USAF PUC g. Performance Ratings: Eight OERs; however, none was rendered during period of service under current review. h. Disciplinary Action(s) / Evidentiary Record: Ad Hoc case file with Charge Sheet described at the preceding paragraph 3c(1) and its associated documents. i. Lost Time / Mode of Return: None recorded on DD Form 214 / NA j. Diagnosed PTSD / TBI / Behavioral Health: Adult Preventive and Chronic Care Flowsheet, lists behavioral health issues as "Alcohol Dependence (alcoholism) [and] Major Depression Single Episode Moderate." Report of Mental Status Evaluation, dated 16 October 2014, indicates an "AXIS I" diagnosis as "Alcohol Dependence, Alcohol Induced Mood Disorder." Report of Medical History, dated 11 December 2014, indicates the applicant noted behavioral health issues. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 11 September 2019. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): Army Regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officers. Chapter 3, paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. An officer will normally receive an under other than honorable conditions when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct. 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 "DFS" as the appropriate code to assign officers who are discharged under the provisions of AR 600-8-24, Chapter 3, paragraph 3-13, for "In Lieu of Trial by Court-Martial." 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, and to change the narrative reason for his discharge. The applicant's available record of service and his application were carefully reviewed. The record indicates the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. The applicant voluntarily requested resignation in lieu of trial by general court-martial under the provisions of Chapter 3, AR 600-8-24. The appropriate authority approved the applicant's request and issuance of an under other than honorable conditions characterization of service. The record confirms that by the misconduct, the applicant diminished the overall quality of his service below that meriting an honorable. 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 duty with the Army National Guard. Although the applicant did not present any his behavioral health issues, a careful review of the available record indicates the applicant's behavioral health issues symptoms existed. 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 requests to change the reason for his separation to secretarial authority; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 3, paragraph 3-13 is "In Lieu of Trial by Court-Martial," and the separation code is DFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The service record does not reveal any evidence of arbitrary or capricious actions by the applicant's command. It appears that 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Counsel / Witness(es) / Observer(s) / Counsel: 10. BOARD DETERMINATION: Due to COVID-19, a telephonic personal appearance hearing was conducted at Arlington, VA on 23 March 2020, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20190011809 5