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 under other than honorable conditions. The applicant requests an upgrade to general. The applicant seeks relief contending, in effect, as an Army Recruiter, the period during the Iraq war was very stressful; the family was going through a divorce after 25 years, the applicant lost a parent, grandparent, uncle, stepparent, and a childhood friend of 35 years overdosed, all within six months. The applicant sought help through the chain of command, but there was a change of command and the incoming command did not fully understand the applicant’s situation. The applicant requested to resign from the AGR status, but the request was denied. The applicant woke up 30 minutes late one morning and was listed as AWOL; therefore, the applicant went AWOL. This was not a good time in the applicant’s life and as a result, the applicant self-admitted for drug use. The new commander conducted a urinalysis on the applicant and the applicant tested positive. The commander attempted to have the applicant arrested for possession of cocaine, but CID told the applicant to return to the unit because the commander should not have tested the applicant since the applicant self-admitted. The commander still had the drug use placed on the applicant’s DD Form 214. The applicant was self-admitted to the psychiatric ward of Womack Army Hospital following a mental crisis in the applicant’s life. The applicant was prescribed antidepressants. Being an Army Recruiter was a very mentally taxing job. Prior to this time the applicant’s records reflect the applicant was an exemplary Soldier. The applicant served the country well and dedicated much of the applicant’s life to the country. The applicant believes punishment is deserved, but not an other than honorable conditions discharge. The applicant served as an Artilleryman, a Military Police, an Investigator, and an Army Recruiter with a clean record. The applicant requests a second chance and to be recognized for the service. In a records review conducted on 7 June 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: 21 July 2009 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): NIF (2) Legal Consultation Date: NIF (3) Basis for Separation: NIF (4) Recommended Characterization: NIF (5) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 November 2005 / Indefinite b. Age at Enlistment / Education / GT Score: 40 / HS Graduate / 117 c. Highest Grade Achieved / MOS / Total Service: E-7 / 79R40, Recruiter / 19 years, 1 month, 12 days d. Prior Service / Characterizations: RA, 21 June 1983 – 27 April 1987 / HD USARCG, 28 April 1987 – April 1988 / NA (Break in Service) USAR, 21 June 1997 – 20 May 2000 / HD ADT, 28 August 1997 – 14 November 1997 / HD (Concurrent Service) USAR, 21 May 2000 – 2 November 2005 / HD AD, 8 October 2001 – 2 November 2005 / NA (Concurrent Service) e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: ARCOM, AAM-4, AGCM-3, ARCAM, NDSM-2, GWOTSM, NCOPDR-3, ASR, OSR / The applicant’s AMHRR reflects award of three ARCOMs, however, two ARCOMs are not reflected on the DD Form 214. g. Performance Ratings: December 2005 – April 2006 / Among the Best 1 May 2006 – 30 April 2006 [sic] / Fully Capable 1 May 2007 – 30 April 2008 / Marginal h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation - Initial Final, dated 15 July 2008, reflects the Commander, Winston-Salem Recruiting Battalion, Winston- Salem, NC, reported the applicant tested positive for cocaine during a Unit Urinalysis Inspection (UUI) conducted on 23 June 2008. Three Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Absent Without Leave (AWOL),” effective date 14 August 2008; From “AWOL” to “Dropped From Rolls (DFR),” effective date 13 September 2008; and, From “PDY” to “AWOL” to “DFR,” effective date 3 May 2009. Report of Return, dated 20 April 2009, reflects the applicant went AWOL on 14 August 2008, and was apprehended by civilian authorities on 20 April 2009. Report of Return, dated 15 September 2009, reflects the applicant went AWOL on 3 May 2009 and surrendered to military authorities on 21 July 2009. Orders Number C-07-913206A01, dated 16 July 2009, amended by Order Number C-07- 913206A01, dated 17 July 2009, reflect the applicant was to be reassigned to Fort Bragg, NC, and discharged on 21 July 2009 from the U.S. Army Reserve Active Guard Reserve. DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of under other than honorable conditions. i. Lost Time / Mode of Return: 9 months, 12 days: NIF, 16 April 2008 – 5 May 2008 / NIF NIF, 7 May 2008 – 11 May 2008 / NIF AWOL, 14 August 2008 – 30 April 2009 / Apprehended by Civilian Authorities / Report of Return reflects a discrepancy, showing the applicant returned to military control on 20 April 2009. AWOL for 80 days, 3 May 2009 to 21 July 2009. This period is not annotated on the DD Form 214, block 29. j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided Chronological Record of Medical Care, dated 7 March to 13 May 2008, which reflects the applicant was diagnosed with Cocaine Abuse and Adjustment Disorder. The applicant was sent to the emergency room by ASAP for admission to the Wilmington Treatment Center for Cocaine Use. The Emergency Department could not admit the applicant because the applicant was on the waiting list. The applicant indicated possible self-harm, if the applicant left the emergency room. Dr. M. was contacted and agreed to accept the applicant for admission. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; self-authored statement; Chronological Record of Medical Care; third party statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided a third-party statement which indicates the applicant has been abstinent from drugs and has been clean for several years. The applicant has not been in any trouble with the law and plays an active role in the lives of the grandchildren. 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.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be improper. 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 a 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 General. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant’s AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of under other than honorable conditions. The applicant contends mental health issues affected behavior and led to discharge. The applicant provides documentation which supports a diagnosis of in-service Cocaine Abuse and Adjustment Disorder. The applicant provided a statement that indicates the applicant self- admitted to the Womack Army Hospital, psychiatric ward following a mental crisis in the applicant’s life, which resulted in the applicant being prescribed antidepressants. The applicant’s AMHRR is void of a mental status evaluation. The applicant contends family issues affected behavior and led to the discharge, including the death of four family members and a close friend within six months. There is no evidence in the AMHRR the applicant ever sought assistance before committing misconduct. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the applicant’s request to resign from the U.S. Army Reserve Active Guard Reserve status was denied. The AMHRR is void of any evidence to show the applicant submitted a request for resignation. The applicant did not provide any evidence to support the contention. The applicant contends the commander erroneously put “drug use” on the applicant’s DD Form 214 when the applicant’s positive test was a result of self-admission. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial. The record does not provide the specific facts and circumstances surrounding the applicant’s discharge, but the DD Form 214 is void of any mention of drug use. The applicant contends good service. The applicant’s received three honorable discharges for service periods between 21 June 1983 and 2 November 2005. The applicant’s performance evaluations for between December 2005 and April 2008 reflect “among the best”, “fully capable”, and marginal, respectively. The applicant contends abstinence from drugs and being clean for several years. The applicant statement indicates that the applicant has not been in any trouble with the law and plays an active role in the lives of the grandchildren. The third-party statement provided with the application speak highly of the applicant and recognizes the applicant’s good conduct after leaving the Army. 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 DoD and VA medical records, applicant submissions and third-party statements, and found the applicant’s Adjustment Disorder and Cocaine Abuse could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that an Adjustment Disorder and Cocaine Abuse were diagnosed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined there is insufficient evidence to support the presence of any behavioral health conditions that can mitigate for the Board accepted basis of separation – wrongful cocaine use and AWOL. The applicant’s official medical records and those provided by the applicant only include diagnosis of Adjustment Disorder and Cocaine Abuse, which is insufficient evidence to conclude that the applicant had significant psychological symptoms or diagnoses during applicant’s time in service that would mitigate the applicant’s drug use or AWOL. The Board Medical Advisor recommends the applicant submit additional medical documentation that reflect other behavioral health condition(s) related to applicant’s military service. (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 the applicant’s Adjustment Disorder and Cocaine Abuse do not outweigh the applicant’s medically unmitigated Board accepted basis for applicant’s separation – wrongfully using Cocaine and two AWOL offenses. b. Response to Contention(s): (1) The applicant contends mental health issues affected behavior and led to the discharge. The Board liberally considered this contention and determined that that the applicant’s Adjustment Disorder and Cocaine Abuse do not outweigh the applicant’s medically unmitigated Board accepted basis for applicant’s separation – wrongfully using Cocaine and two AWOL offenses. (2) The applicant contends family issues affected behavior and led to the discharge. The Board considered this , but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant other than the applicant’s statement that such assistance was pursued. The Board concluded that the applicant abusing drugs and being AWOL is not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (3) The applicant contends requesting to resign from the U.S. Army Reserve Active Guard Reserve status, but the request was denied. The Board considered this contention non- persuasive during its deliberations. (4) The applicant contends the commander had the drug use placed on the DD Form 214. The Board considered this contention and determined the DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, not “drug use.” Therefore, the applicant’s discharge is proper and equitable. (5) The applicant contends good service. The Board considered the totality of the applicant’s service record, but 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 AWOL twice and wrongfully using Cocaine, the applicant diminished the quality of service below that meriting an a general or honorable discharge at the time of separation. (6) The applicant contends abstinence from drugs and being clean for several years. The applicant has not been in any trouble with the law and plays an active role in the lives of the grandchildren. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 being AWOL twice and wrongfully using Cocaine is not excused or mitigated by the totality of the applicant’s record, including the applicant’s Adjustment Disorder and Cocaine Abuse diagnosis. 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, the applicant’s Adjustment Disorder and Cocaine Abuse do not outweigh the applicant’s medically unmitigated Board accepted basis for the applicant’s separation – wrongfully using Cocaine and two AWOL offenses. The Board also considered the applicant’s inequity contention, including the applicant’s good service, the severe family issues that the applicant experienced prior to separation, the applicant’s post- service accomplishment, and the applicant’s behavioral health issues and found that discharge upgrade is not warranted due to the serious nature of the applicant’s misconduct. The Board also considered the applicant’s contention of the Command improperly referencing “drug use” on the applicant’s DD214 and found the applicant’s discharge properly reflects that the applicant was discharge in accordance with AR 635-200, Chapter 10, “In lieu of Trial by Court-Martial.” 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 Discharge was proper and equitable as the applicant’s misconduct fell below that level of satisfactory service to warranted for an upgrade to a General Discharge or meritorious service warranted for an upgrade to Honorable. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as 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 AR20210002902 1