1. Applicant’s Name: a. Application Date: 30 June 2020 b. Date Received: 30 June 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge and sentencing was unjust. In 2016, right after they had come back from the national training center (NTC), the applicant’s fourth time attending NTC, the applicant and roommate went to downtown Seattle to blow off some steam, as well as just wanting to have fun. While attending a club, the applicant and roommate had been confronted by a few guys that they had conversed with. The applicant grabbed the attention of a female at the time while the roommate was still conversing with the gentlemen. The applicant’s roommate then approached the applicant with the gentlemen and showed the applicant a few pills. Not entirely within the applicant’s best judgement, the applicant ingested them. Later on, that week after word got out about another Soldier doing drugs at the same club, the new troop commander made everyone in the troop to do a urinalysis. The applicant, roommate, and the other Soldier failed the urinalysis. A few weeks pass and after a brigade run, they were all informed that there was going to be a health and wellness check throughout the barracks. The applicant’s roommate then informs the applicant about previously rolling up marijuana that day to smoke it after getting off. The applicant did not think about where the roommate did it. The applicant and roommate were called into the barracks to be informed that there was spots of marijuana on the bathroom floor. Due to it being in the "common area" they both were charged with having marijuana, regardless of who’s it was. Already being stripped of rank, loss of pay, and looking at getting kicked out; the applicant’s roommate went absent without leave (AWOL). The roommate’s father met with the applicant at the gate, after driving from Chicago, and after leaving a number of phone calls to the roommate, the roommate shows up. Once the roommate returns to base, the applicant notified the chain of command about what had happened, they sent the noncommissioned officer (NCO) to escort the roommate back on base. After the applicant arrives back to the troop, the applicant is applauded by many Soldiers and looked at the applicant in a respectful way as "That guy who saved someone from being AWOL." Immediately after, the applicant got notified to go to the commander's office, where the troop commander informed the applicant about receiving an other than honorable discharge and an immediate discharge from the military. Looking back at it the applicant wishes to have gotten evidence of all that had occurred, not for the applicant’s benefit, but because of the unjust immorality that occurred behind closed doors. The applicant’s NCOs did not stand up for the applicant, even after telling the applicant to fly under the radar and get this Soldier back to base. The troop commander being new to the troop saw all of this going down and immediately saw the applicant as a horrible Soldier and person. The applicant requests this upgrade for purposes that a fire department may even want to entertain an application. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a records review conducted on 7 July 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 3 June 2016 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 6 May 2016, the applicant was charged with: Charge I: Violating Article 86, Uniform Code of Military Justice (UCMJ), for: Specification 1: Failed to go at the time prescribed to the appointed place of duty on or about 9 February 2016, 0600 physical training formation. Specification 2: Failed to go at the time prescribed to the appointed place of duty on or about 29 April 2016, 0930 work call formation. Specification 3: Failed to go at the time prescribed to the appointed place of duty, on or about 29 April 2016, 1200 close-out formation. Specification 4: Failed to go at the time prescribed to the appointed place of duty, on or about 29 April 2016, 1800 extra duty. Charge II: Violating Article 92, UCMJ, for: Specification 1: Violated a lawful general order on or about 25 April 2016, by wrongfully possessing drug paraphernalia which were used for unlawful use and distribution of vapor cartridges for inhaling a prohibited substance. Specification 2: Having knowledge of a lawful order issued by Captain P__ D__ on or about 25 April 2016 to not leave Joint Base Lewis-McChord, without first obtaining the permission of the first line supervisor, an order which it was the applicant’s duty to obey, did at or near Joint Base Lewis-McChord, WA, on or about 29 April 2016, fail to obey the same by wrongfully leaving Joint Base Lewis-McChord. Charge III: Violating Article 112a, UCMJ, for: Specification 1: Wrongfully use cocaine between on or about 16 January 2016 and on or about 16 February 2016. Specification 2: Wrongfully use cocaine between on or about 1 March 2016 and on or about 1 April 2016. Specification 3: Wrongfully use marijuana between on or about·1 March 2016 and on or about 1 April 2016. Specification 4: Wrongfully possess some quantity of marijuana on or about 25 April 2016. Charge IV: Violating Article 134, UCMJ, for: Breaking said restriction on or about 29 April 2016. (2) Legal Consultation Date: 17 May 2016 (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: 23 May 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 September 2013 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19D10, Calvary Scout / 2 years, 8 months, 25 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: None f. Awards and Decorations: GWTSM, ASR / The applicant’s AMHRR reflects award of the AAM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 3 March 2016, reflects the applicant tested positive for COC 3729 (cocaine), during an Inspection Unit (IU) urinalysis testing, conducted on 16 February 2016. FG Article 15, dated 15 March 2016, for wrongfully using cocaine between on or about 13 and 16 February and 2016. The punishment consisted of a reduction to E-1; forfeiture of $783 pay per month for two month; and extra duty and restriction for 45 days. Three Developmental Counseling Forms, for various acts of misconduct. Electronic Copy of DD Form 2624, dated 25 April 2016, reflects the applicant tested positive for COC 9293 (cocaine) and THC 147 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 1 April 2016. Report of Mental Status Evaluation (MSE), dated 24 March 2016, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for post-traumatic stress disorder (PTSD), mild traumatic brain injury (mTBI) with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant’s Enlisted Record Brief, dated 6 June 2016, reflects the applicant was flagged for adverse action (AA), effective 14 March 2016, drug abuse adverse action (UA), effective 14 March 2016, and involuntary separation/field initiated (BA), effective 14 March 2016; was ineligible for reenlistment due to pending separation (9V). The Assignment Eligibility Availability (AEA) code reflects AEA code “L” which has no assignment restrictions. The applicant was reduced from E-4 to E-1 effective 18 March 2016. FLAGS / AEA codes: AA, UA, BA / L RE/Prohibition code: 9V i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: MSE as described in previous paragraph 4h. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two DA Forms 638 (page one only); self- authored statement; college transcripts; cognitive and skills evaluations completion document; four certificates of completion; one third-party letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has had one job at FedEx for over 3 years, married, completed five courses, will be graduating from college, and will be attending an emergency medical technician 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), 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. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, 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, sec II.) 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. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The evidence in the applicant’s AMHRR 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 AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans’ benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends, in effect, an upgrade will allow the applicant to possibly obtain a job with the fire department. The Board does not grant relief to gain employment or enhance employment opportunities. The third party statement provided with the application speaks highly of the applicant while serving in the Army. The applicant contends, in effect, the NCOs did not stand up for the applicant, even after telling the applicant to fly under the radar and get this Soldier back to base. The troop commander being new to the troop saw all of this going down and immediately saw the applicant as a horrible Soldier and person. 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. 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? No. The Board’s Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): The applicant contends the discharge was unjust. The Board considered this contention but determined that there was insufficient evidence in the applicant’s AMHRR of applicant-provided evidence to support this contention. Applicant, with counsel, voluntarily requested administrative discharge in lieu of trial by court-martial and the convening authority approved that request. There was no evidence presented to the Board to convince the Board of any mitigating circumstances. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. 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 contention(s) that the discharge was improper or inequitable. ? d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant was not found to have an in-service behavioral health condition that would mitigate or excuse the discharge. The Board considered the applicant's contention that the discharge was unjust and found that the totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (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 / Separation Order: No b. Change Characterization to: No Change 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 AR20200010096 1