1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the early separation was due to medication abuse and selling it to support the applicant’s habit. The applicant was prescribed opiate medication for pain and became addicted because it helped the pain and helped with PTSD, anxiety, depression, sleep, and it was the only way the applicant could function. The applicant believes the service was honorable when called upon to do the duties as an Infantryman. The applicant never had any issues or UCMJ until after coming back from Afghanistan. The applicant made poor decisions during the hardest time of the applicant’s life. The applicant was reaching for a lifeline which many others found in alcohol and self-medication. The applicant had never done a drug or been on any medications prior to the military and was not aware of the addictive tendencies; and over fifty percent of the Soldier’s the applicant served with whom were injured were put on opiate pain medication. The applicant was discharged almost five years ago and is still fighting with addiction issues. The PTSD, TBI and chronic pain has ruined the applicant’s life. The applicant is now in a better place and finally is ready to submit this application. For the past year, the applicant has been receiving treatment from a methadone clinic which has helped the applicant turn their life around; with the help of the applicant’s fiancé and family support, the applicant can finally say they are clean. Every day the applicant fights the cravings of the opiates physically and mentally. For the past five years, it was the only thing which kept the applicant sane and from killing oneself. It was the applicant’s go to thing to take away all the physical and mental pain which came from the applicant’s experience in Afghanistan. The applicant lost all the relationships, family, and friends. The applicant has been psychiatrically hospitalized over 15 times. The applicant was a great Soldier whom when called upon served the country honorably and the issues can from the applicant’s service in Afghanistan. b. Board Type and Decision: In a records review conducted on 4 April 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 / General (Under Honorable Conditions) b. Date of Discharge: 22 November 2011 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 7 September 2011, the applicant was charged with: The Charge: Violating Article 112a, UCMJ. Specification 1: On or about 7 April 2011, the applicant wrongfully distributed five 10mg Vicodin pills, a Schedule II Controlled Substance. Specification 2: On or about 5 April 2011, the applicant wrongfully distributed twenty-five 10mg Vicodin pills, a Schedule II Controlled Substance, and seventeen 20mg Oxycontin pills, a Schedule II Controlled Substance. (2) Legal Consultation Date: 4 October 2011 (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: 9 November 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 August 2008 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 3 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (24 February 2009 – 31 December 2009 f. Awards and Decorations: NDSM, ACM-2CS, GWOTSM, ASR, OSR, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 12 April 2011, reflects the applicant tested positive for DAMP 1685, during an Inspection Random (IR) urinalysis testing, conducted on 4 April 2011. FG Article 15, dated 8 June 2011, for failing to go at the time prescribed to the appointed place of duty on or about 7 April 2011 and 12 April 2011; and, wrongfully using DAMP (Amphetamine) on or about 1 April 2011 and 4 April 2011. The punishment consisted of a reduction to E-2; and extra duty and restriction for 30 days. Agent’s Investigation Report, dated 29 July 2011, reflects Trial Counsel, CPT S. opined probable cause existed to believe the applicant committed the offense of Wrongful Distribution of a Controlled Substance. Four Developmental Counseling Forms, for various acts of misconduct. Charge Sheet as described in paragraph 3c(1). i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: VA Rating Decision Letter, dated 9 August 2013, reflects the applicant was granted 100 percent service-connected disabilities for Post-Traumatic Stress Disorder with Major Depression and Migraines. VA Summary of benefits letter, dated 26 December 2013, reflects the applicant was granted 100 percent service-connected disability. (2) AMHRR Listed: Medical Evaluation Board Proceedings, dated 4 August 2011, reflect the following diagnosis: Post-traumatic Stress Disorder; Major Depressive Disorder; and mild TBI w/residual migraine headaches and photophobia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; VA Administrative Decision Letter; DD Form 214; VA Statement in Support of Claim; eleven third-party letters; VA Decision Letter; VA Education Benefits Letter; DD Form 214; VA Summary of Benefits Letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been receiving treatment from a methadone clinic which has helped the applicant turn their life around; with the help of the applicant’s fiancé and family support, the applicant can finally say they are clean. 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) 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. (5) 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 Army Military Human Resource Record (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 general (under honorable conditions) discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends being addicted to opiates which were prescribed for pain. The medication also helped with the applicant’s PTSD, anxiety, depression, and sleep. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service PTSD, Major Depressive Disorder and Mild TBI. Medical Evaluation Board Proceedings, dated 4 August 2011, reflect the following diagnosis: Post-traumatic Stress Disorder; Major Depressive Disorder; and mild TBI w/residual migraine headaches and photophobia. The record does not contain a mental status evaluation (MSE). The applicant contends never doing drugs or being on any medications prior to the military and was not aware of the addictive tendencies. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends good service, including a combat tour. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct while serving in the Army. The applicant has been receiving treatment from a methadone clinic which has helped the applicant turn their life around; with the help of the applicant’s fiancé and family support, the applicant can finally say they are clean. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. 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. 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 the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: PTSD, Major Depressive Disorder, and TBI. Additionally, the applicant asserts PTSD and other behavioral health conditions. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence of PTSD, TBI, and major depression at the time of military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there is evidence of 3 mitigating conditions at the time of service and offenses leading to discharge: PTSD, TBI, and Major Depression (existed prior to but aggravated by service, per available records). These records were available for the Board for review. Ultimately, these conditions do not impair one’s ability to distinguish right from wrong and adhere to the right, and the extensive medical and investigative records indicate this applicant did not have impairment (especially cognitive) of the severity to result in the inability to discern right from wrong and adhere to the right. Therefore, PTSD, TBI, and depression do not mitigate the wrongful distribution of controlled substances leading to applicant’s discharge, as there is no nexus between these conditions and wrongful distribution of controlled substances. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s PTSD, TBI, and Major Depression outweighed the basis for applicant’s separation – wrongful distribution of a controlled substance (5 x Vicodin, then 25 Vicodin and 17 Oxycontin) and use of amphetamines – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends being addicted to opiates which were prescribed for pain. The medication also helped with the applicant’s PTSD, anxiety, depression, and sleep. The Board considered this contention and determined that the applicant’s assertion of addiction to opiates does not outweigh the applicant’s misconduct of wrongful distribution of a controlled substance (5 x Vicodin, then 25 Vicodin and 17 Oxycontin). (2) The applicant contends never doing drugs or being on any medications prior to the military and was not aware of the addictive tendencies. The Board considered this contention and determined applicant’ contention does not excuse or mitigate wrongful distribution of a controlled substance (5 x Vicodin, then 25 Vicodin and 17 Oxycontin). (3) The applicant has been receiving treatment from a methadone clinic which has helped the applicant turn their life around; with the help of the applicant’s fiancé and family support, the applicant can finally say they are clean. 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. In this case, the Board considered this contention and determined that applicant’s post-service accomplishments do not mitigate or excuse wrongful distribution of a controlled substance (5 x Vicodin, then 25 Vicodin and 17 Oxycontin). c. The Board determined that the discharge is, at this time, proper and equitable, in light of 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’s PTSD, TBI, and Major Depression did not excuse or mitigate the offenses of wrongful distribution of a controlled substance (5 x Vicodin, then 25 Vicodin and 17 Oxycontin). The applicant’s misconduct diminished the applicant’s quality of service below that level of sufficiently meritorious service to warrant an HD. (2) 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. (3) 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. (4) 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 AR20210002104 1