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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, serving the country honorably. The applicant deployed twice after 9/11 and was in the invasion of Iraq in 2003. While the applicant was out- processing from the Army in late 2003, the applicant was arrested for possession, but was not in possession of anything. The applicant was married and living in a home off post. Many Soldiers would come to the applicant’s house on the weekends for cook outs, etcetera, and one Soldier who would come over made friends with a neighbor and received drugs from the neighbor to try and fail multiple drug tests in order to be kicked out of the Army. The Soldier told the battalion commander they received the drugs while at the applicant’s house. A warrant was issued and the applicant was arrested by the State of Georgia and charged by the military. The applicant’s family was already moving home to Indiana. The applicant could prove innocence, however would have to wait until the court-martial to prove it. The applicant could not stay in Georgia for up to another year waiting on court. The applicant’s attorney requested they let the applicant out under chapter 10 discharge. Once the applicant proved innocence, the applicant could have the discharge upgraded. The applicant was able to prove it to the state and all the charges were dismissed. The applicant has never asked for anything from the Government since being discharged. The applicant has suffered from PTSD for 14 years now and is finally requesting help. The discharge needs to be upgraded to allow the applicant to be seen at the VA. b. Board Type and Decision: In a records review conducted on 26 July 2022, 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: 30 December 2003 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 20 November 2003, the applicant was charged with: Violating Article 112a (Wrongful Distribution of Cocaine x 2): Specification 1: On or about 17 September 2003, wrongfully distributed approximately five grams of crack cocaine, a Schedule II controlled substance. Specification 2: On or about 9 September 2003, wrongfully distributed approximately four grams of cocaine, a Schedule II controlled substance. (2) Legal Consultation Date: 2 December 2003 (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: 17 December 2003 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 November 2000 / 3 years b. Age at Enlistment / Education / GT Score: 21 / GED / 114 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14S10, Avenger Crewmember / 3 years, 1 month, 15 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (29 March 2002 – 1 October 2002); Iraq (27 January 2003 – 28 July 2003) f. Awards and Decorations: ASR / The applicant’s ERB reflects award of the NDSM and AFEM however, the awards are not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 12 February 2002, reflects the applicant tested positive for COC 906 (cocaine), during an Inspection Random (IR) urinalysis testing, conducted on 22 January 2002. FG Article 15, dated 5 July 2002, for wrongfully using cocaine (between on or about 19 December 2002 and 22 January 2002). The punishment consisted of a reduction to E-1; forfeiture of $552 pay per month for two months; and, extra duty for 45 days. CID Report of Investigation – Final, dated 25 November 2003, reflects probable cause existed to believe the applicant committed the offense of Wrongful Use, Possession and distribution of a Controlled Substance when the applicant sold cocaine to a CID Registered Source on two separate occasions and confessed to using cocaine on numerous occasions. Charge Sheet as described in previous paragraph 3c(1). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of Initial Post Traumatic Stress Disorder Disability Benefits Questionnaire, which reflects diagnoses of PTSD and Major Depressive Disorder, Recurrent, Severe. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 149; DD Form 214, State of Georgia Court document; Privacy Release Form; Initial Post Traumatic Stress Disorder Disability Benefits Questionnaire; VA Form 21-4138. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application 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 record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends good service, including two combat tours. The Board considered the service accomplishments and the quality of service. The applicant contends being arrested while out-processing and the chain of command insisted on a court-martial. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends proving innocence and the charges were dismissed by the State of Georgia. The applicant submitted a copy of the motion to Nolle Prosequi dated 4 October 2006, which does not reflect the applicant was proven innocent, the motion states the applicant had been cooperating with law enforcement. The applicant contends being a combat veteran and suffering from PTSD and Severe Major Depressive Disorder. The applicant provided a copy of Initial Post Traumatic Stress Disorder Disability Benefits Questionnaire, which reflects diagnoses of PTSD and Major Depressive Disorder, Recurrent, Severe. The AMHRR does not contain a mental status evaluation (MSE). The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran’s benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 the applicant’s PTSD and Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant is rated and service connected for PTSD and MDD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that that applicant’s PTSD and MDD do not mitigate the applicant’s basis of separation – wrongful distribution of cocaine on two occasions as distribution of cocaine is not part of the sequela of symptoms associated with PTSD or MDD. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant’s PTSD and MDD did not outweigh the applicant’s medically unmitigated basis for applicant’s separation – wrongful distribution of cocaine on two occasions. b. Response to Contention(s): (1) The applicant contends good service, including two combat tours. The Board considered this contention and determined the applicant’s discharge 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 distributing cocaine on two occasions, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. Further, the applicant sold drugs to CID agents and also admitted to numerous uses. Therefore, no change is warranted. (2) The applicant contends being arrested while out-processing and the chain of command insisted on a court-martial. The Board considered the applicant’s timeline of events, including that the applicant’s family had already left the area. However, AR 27-10 authorizes the return service members to military control when the Command has a view towards courts- martial. In this case, the Board determined that the applicant was under UCMJ jurisdiction at the time of the applicant’s offense and the applicant, while under legal advisement, voluntarily requested administrative discharge in lieu of trial by courts-martial in accordance with AR 635- 200, Chapter 10 in which the applicant admitted guilt to one or more of the two charges of wrongful distribution of controlled substances or at least one of the lesser included offenses. Therefore, the applicant’s discharge is proper and equitable. (3) The applicant contends proving innocence and the charges were dismissed by the State of Georgia. The Board considered this contention and found no merit to this contention, as the court documents do not state the charges were dismissed, rather the documents state that the applicant received a lighter sentence due to cooperation with law enforcement to identify other perpetrators. Therefore, no change is warranted. (4) The applicant contends being a combat veteran and suffering from PTSD and severe Major Depressive Disorder. The Board liberally considered this contention and determined that the applicant’s PTSD diagnosis and MDD did not outweigh the applicant’s medically unmitigated basis of separation – two offenses of wrongful distribution of cocaine. (5) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. Decision: The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 and MDD did not outweigh the applicant’s medically unmitigated basis of separation – wrongful distribution of cocaine on two occasions. The Board also considered the applicant’s contentions of impropriety relating the Command proceeding with a court-martial and that the applicant was proven innocent by the State of Georgia and found that there was no evidence of arbitrary or capricious actions warranting a discharge upgrade. Finally, the Board considered the applicant’s contentions of inequity, including the applicant’s good service, including two combat tours and the applicant’s PTSD and MDD and determined 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 UOTH was proper and equitable as the applicant’s misconduct fell below that level of satisfactory service warranting an GD upgrade or meritorious service warranted for an upgrade to HD. (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 AR20210002731 1