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: 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, during military service the applicant received bilateral hearing loss, tinnitus, cervical and thoracic spinal injuries, nerve encroachment damage, (numbness pain and tingling in arms and legs), migraines, and post-traumatic stress, which still remains unresolved and untreated. The applicant states the applicant was given a discharge hearing on 15 November 2012, for unsatisfactory participation. On 18 November 2012, the applicant states the applicant mailed a signed and dated letter within the allotted time to appeal. The applicant states the applicant disputed the discharge proceedings, stating no full medical evaluation was received to determine the applicant's status prior to the decision for discharge. The applicant states the letter was unanswered and believes the chain of command was negligent and violated the discharge process requirements. The applicant states the applicant's Veteran Affairs (VA) disability compensation claim, dated 7 January 2013, was denied twice. The applicant states the applicant met with a Veterans Service Officer for another appeal and was awarded treatment solely for the cervical injury in August 2016. Because of the mishandling of the applicant's status and medical care, the applicant states the applicant became despondent, addicted to high levels of prescribed opiate medications, over stressed mentally, physically, emotionally and ultimately became incapable of functioning. In a records review conducted on 14 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: Reason / Authority / Codes / Characterization: Commission of a Serious Offense / AR 135- 178, Chapter 12-1c / NA / NA / General (Under Honorable Conditions) a. Date of Discharge: 14 November 2012 b. Separation Facts: (1) Date of Notification of Intent to Separate: 10 October 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant had been found guilty in the Idaho State Court System for I54-1732(3)(C) Pharmacy Unlawful Possession or Use of Prescription Drug, I37-2734A (1) Drug Paraphernalia Use or Possess with Intent to Use, 118-8004 {F} Driving Under the Influence, and I20-222 Probation Violation. These convictions resulted in confinement in a state prison. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 10 October 2012, the applicant waived legal counsel. (5) Administrative Separation Board: On 10 October 2012, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon the applicant receiving a characterization of service higher than the least favorable characterization of service authorized by separation action. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 January 2008 / 8 years (MSO: 30 January 2016) b. Age at Enlistment / Education / GT Score: 23 / GED / 108 c. Highest Grade Achieved / MOS / Total Service: E-2 / 12B10, Combat Engineer / 4 years, 9 months, 14 days d. Prior Service / Characterizations: ARNG, 31 January 2008 - 23 October 2009 / GD IADT, 20 March 2008 - 3 July 2008 / HD (Concurrent Service) e. Overseas Service / Combat Service: NIF f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Idaho Repository Case History, printout dated 9 October 2012, reflects the applicant had been found guilty in the Idaho State Court System for I54-1732(3)(C) Pharmacy Unlawful Possession or Use of Prescription Drug, I37- 2734A (1) Drug Paraphernalia Use or Possess with Intent to Use, 118-8004 {F} Driving Under the Influence, and I20-222 Probation Violation. These convictions resulted in confinement in a state prison. Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA letters; third-party letters; case separation packet; medical records; copies of military personnel records; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states working towards certification as a barber and publishes thoughtful kind contributions in a local magazine. Also, the applicant is working on strengthening connections and relationships with family, friends, and community. 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 135-178 prescribes the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization 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. (2) Paragraph 2-9b, prescribes, if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. (3) Chapter 11 (previously Chapter 12), establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (4) Paragraph 11-1c, prescribes for the separation for the commission of a serious military or civilian offense, if the specific circumstances of the offense warrant discharge and a punitive discharge would be authorized for the same or a closely related offense under the UCMJ. (5) Paragraph 11-8, states an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. 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 applicant contends no full medical evaluation prior to the separation authority's decision was received. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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. The applicant contends obtaining employment and volunteering in the community. 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. The third party statement provided with the application speaks highly of the applicant. It recognizes the applicant's good conduct after leaving the Army. 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, 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 claim of IDARNG and USAR training caused multiple medical conditions, including "post traumatic stress" does not provide enough information for the Board's Medical Advisor to make a medical determination regarding whether or not any applicant BH condition (including PTSD) could mitigate the basis for applicant's acts of misconduct that were the basis for applicant's separation - being convicted of Pharmacy Unlawful Possession or Use of Prescription Drug, Drug Paraphernalia Use or Possess with Intent to Use, Driving Under the Influence, and Probation Violation. (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): (1) The applicant contends no full medical evaluation prior to the separation authority's decision was received. The Board considered this contention and the applicant's assertion of impropriety of the separation authority, however the Board determined that the weight of the evidence supported a conclusion that the command actions and the discharge itself were proper and equitable. (2) 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, health care, 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. (3) The applicant contends obtaining employment and volunteering in the community, and provides a third-party statement with the application that speaks highly of the applicant. The ADRB 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 must 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. In this case, the Board determined that applicant's assertion of post service conduct did not warrant any change to the discharge. The Board also considered the third-party statement, and ultimately 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 being convicted of Pharmacy Unlawful Possession or Use of Prescription Drug, Drug Paraphernalia Use or Possess with Intent to Use, Driving Under the Influence, and Probation Violation, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. 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, the applicant's self-asserted "post traumatic stress" did not provide enough information for the Board's Medical Advisor to make a medical determination regarding whether or not any applicant BH condition (including PTSD) could mitigate convictions for Pharmacy Unlawful Possession or Use of Prescription Drug, Drug Paraphernalia Use or Possess with Intent to Use, Driving Under the Influence, and Probation Violation being convicted of Pharmacy Unlawful Possession or Use of Prescription Drug, Drug Paraphernalia Use or Possess with Intent to Use, Driving Under the Influence, and Probation Violation that were the basis for applicant's separation, and the discharge characterization was both proper and equitable. 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. (2) The Board voted not to change the applicant's reason for discharge under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) As there were no SPD Codes/RE-codes listed on the applicant's discharge paperwork, due to being in the Army Reserves, no upgrade actions are required for these items. 10. BOARD ACTION DIRECTED: a. Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason Code to: No Change d. 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 AR20210002850 1