1. Applicant's Name: a. Application Date: 14 April 2017 b. Date Received: 1 May 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant also requests a narrative reason change and Separation Code (SPD) change. The applicant seeks relief contending, in effect, the applicant had "a single event of indiscretion" that led him to submit his resignation from the Army. Unbeknownst to the applicant at the time, prior to his indiscretion, he had contracted a service-connected illness, hepatitis C, scientifically known to affect cognition and judgment. As his medical condition was yet undiagnosed, neither the applicant's command at Fort Benning nor the Army Human Resources Command considered it or the impact it had on his isolated misconduct-a single recreational use of a stimulant drug. Instead, the applicant left the Army "In Lieu of Trial by Court Martial" with a "DFS" separation code, "For the Good of the Service." These words on his DD Form 214, resulting from his aberrant behavior and his service-connected illness, have forever stained the applicant's life, his employment prospects, and his ability to once again serve Soldiers and veterans, a calling that he still desperately wants to fulfill. Counsel states for these reasons, this Board should change the Narrative Reason for Separation to Physical Disability, Failure to Meet Medical Fitness Standards, Convenience of the Government, or Miscellaneous, with a comparable change to the Separation Code. This request is based on both propriety due to an error of face and equity due to applicant's quality of service, capability to serve, and matters in extenuation and mitigation. Counsel further details the contentions in an allied legal brief provided 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 Cocaine Abuse. The VA has also diagnosed the applicant with PTSD with associated anxiety, depression and disrupted sleep, Major Depressive Disorder and Generalized Anxiety Disorder. The applicant is 80% service connected, 70% for PTSD and 60% for Hepatitis C infection. In summary, the applicant has a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 7 December 2020, and by a 4-1 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (OBH and PTSD diagnosis), and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, Chapter 5, the narrative reason for separation to Miscellaneous/general reasons, and the separation code to FND. (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, Chapter 3-13 / DFS / NA / General (Under Honorable Conditions) b. Date of Discharge: 27 December 2013 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 14 March 2013, the applicant was charged with: violating Article 112a, UCMJ, for wrongfully using cocaine between 28 January 2013 and 1 February 2013. (2) Legal Consultation Date: 29 May 2013 (3) Basis for Separation: Pursuant to applicant's request for discharge under the provisions of Chapter 3, AR 600-8-24, Resignation, In Lieu of Trial by Court-Martial. (4) Recommended Characterization: General (Under Honorable Conditions) (5) Separation Decision Date/Characterization: 11 December 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 2 March 2012 / Pursuant to orders for TDY in route to PDS, for acceptance of RA appointment (continuous) with OBV date of 30 September 2016 (per ORB) b. Age at Appointment / Education: 44 / licensed to practice medicine and surgery on 29 September 1998 c. Highest Grade Achieved / MOS / Total Service: O-4 / 62A, Emergency Physician / 1 year, 9 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM; GWOTSM; ASR g. Performance Ratings: 8 March 2012 - 20 May 2013 / Fully Qualified 21 May 2013 - 30 December 2013 / Fully Qualified h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Specimen Custody Document - Drug Testing, indicates the specimen collected from the applicant on 1 February 2013, under an IR (Inspection, Random) basis, tested positive for cocaine. CID Report, dated 27 February 2013, indicates the applicant was the subject of an investigation for wrongful use of cocaine. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Statement of Medical Examination and duty Status, dated 20 December 2013, and doctor's letter, dated 28 August 2013, indicate the applicant was diagnosed service-connected Hepatitis C, complemented with a literature review on neuropsychiatric and psychosocial issues of patients with Hepatitis C infection. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Attorney letter; Legal brief; letter from psychologist; literature supporting the connection between hepatitis C and cognitive impairment: The cognitive effects of hepatitis C in the presence and absence of a history of substance use disorder; and, Why depression is likely with hepatitis C; five letters of support; two emails of support; ASAP Progress Report; two recommendation letters; appointment to faculty of Touro College of Osteopathic Medicine; National Practitioner Databank Self-Query Response; Patient comment card; Patient thank you note; Resident thank you note; White House thank you note; Previous Application, including DD Form 293, Verified Letter Brief, and 40 Enclosures; Curriculum Vitae; Patient Progress Report; medical treatment records; seven photographs. 6. POST SERVICE ACCOMPLISHMENTS: The applicant was appointed to the Touro College of Osteopathic Medicine, with the rank of Adjunct Clinical Assistant Professor of Emergency Medicine. 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 enlisted Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 3-13, 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, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant's record of service, 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. 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 discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date. The applicant contends the event that caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends the narrative reason for the discharge should be changed because he was suffering from undiagnosed hepatitis C. However, the applicant was separated under the provisions of Chapter 3-13, AR 600-8-24 with under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "DFS." 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. The applicant contends he was suffering from an undiagnosed medical condition, which affected his behavior and led to his discharge. However, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. Further, the fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. The applicant contends that he had good service. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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): 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): 10. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 7 December 2020, and by a 4-1 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (OBH and PTSD diagnosis), and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, Chapter 5, the narrative reason for separation to Miscellaneous/general reasons, and the separation code to FND. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Miscellaneous/general reasons d. Change Authority to: AR 635-200, Chapter 5 e. Change SPD / RE Code to: FND / 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 AR20200009252 1