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 honorable. The applicant seeks relief contending, in effect, at the time, the applicant was young and made some bad decisions which the applicant fully regrets now. The applicant made bad decisions by trying to beat PTSD on the applicant’s own, which put the applicant in a bad place with bad decisions, and the applicant was arrested for theft. The applicant was trying to cope with the PTSD and is currently in the Veterans Court Program in Chatham County, GA. In a records review conducted on 25 May 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: 4 August 2011 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 11 July 2011, the applicant was charged with: Charge I: Violating Article 86, UCMJ, for without authority, fail to go at the time prescribed to the appointed place of duty, to wit: 0600 accountability formation located at building 641 on or about 27 April 2011. Charge II: Violating Article 92, UCMJ, for having knowledge of a lawful order issued by the Secretary of the Army, to wit: Prohibited Substances (Spice in Variations) Memorandum for Distribution, paragraph five, dated 10 February 2011, an order which it was the applicant’s duty to obey, did, on or about 13 June 2011, fail to obey the same by wrongfully possessing a prohibited substance. Charge III: Violating Article 112a, UCMJ: Specification 1: Between on or about 24 February 2011 and on or about 2 March 2011, wrongfully use Oxycodone, a Schedule II controlled substance. Specification 2: Between on or about 22 April 2011 and on or about 29 April 2011, wrongfully use Oxycodone, a Schedule II controlled substance. Specification 3: Between on or about 19 May 2011 and on or about 26 May 2011, wrongfully use Oxycodone, a Schedule II controlled substance. Charge IV: Violating Article 121, UCMJ, On or about 13 June 2011, steal a laptop computer, of a value less than $500, property of PFC J. M. D. (2) Legal Consultation Date: 19 July 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: 25 July 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 April 2008 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19D10, Calvary Scout / 3 years, 4 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (15 December 2009 – 4 December 2010) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 20 June 2009, reflects the applicant was charged with Larceny of AAFES Property (Article 121, UCMJ) (On Post). Electronic Copy of DD Form 2624, dated 17 March 2011, reflects the applicant tested positive for OXCOD 1248 OXMOR 1651, during a Probable Cause (PO) urinalysis testing, conducted on 2 March 2011. One Personnel Action form, reflects the applicant’s duty status changed from “Present for Duty (PDY)” to “Failure To Report (FTR),” effective 27 April 2011. Electronic Copy of DD Form 2624, dated 6 May 2011, reflects the applicant tested positive for OXCOD 701 OXMOR 1394, during an Inspection Other (IO) urinalysis testing, conducted on 29 April 2011. Military Police Report, dated 7 May 2011, reflects the applicant was charged with wrongful use of Oxycodone – determined by urinalysis test (Article#112a, UCMJ) (On Post). Military Police Report, dated 18 May 2011, reflects the applicant was charged with wrongful use of Oxycodone (Article#112a, UCMJ) (On Post). Military Police Report, dated 27 May 2011, reflects the applicant was charged with wrongful use of Oxycodone (Article#112a, UCMJ) (On Post). FG Article 15, dated 9 June 2011, for failing to go to the appointed place of duty at the prescribed time on or about 27 April 2011 and wrongfully using Oxycodone, a Schedule II controlled substance on two separate occasions between 24 February and 2 March 2011, and between 22 and 29 April 2011. The punishment is NIF. Electronic Copy of DD Form 2624, dated 13 June 2011, reflects the applicant tested positive for OXCOD 16880 OXMOR 15995, during an Inspection Unit (IU) urinalysis testing, conducted on 26 May 2011. Military Police Report, dated 13 June 2011, reflects the applicant was charged with Larceny of Private Property (Article #121, UCMJ) (On Post). Savannah-Chatham Metropolitan Police Report, dated 26 June 2011, reflects the applicant was arrested for Theft by Taking, Criminal Trespassing, Possession of Tools, Possession and Use of Other Drug Paraphernalia. Numerous Developmental Counseling Forms, for various acts of misconduct. Charge sheet as described in paragraph 3c(1). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Office of the Court Administrator Eastern Judicial Circuit Chatham County Veterans Court letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is a participant in the Chatham County Veterans Court program and is in good standing. 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: 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 record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of 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 youth and immaturity affected the applicant’s behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends making bad decisions by trying to beat PTSD on the applicant’s own. The applicant’s AMHRR contains no documentation of PTSD diagnosis. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The AMHRR does not contain a mental status evaluation (MSE). The applicant is a participant in the Chatham County Veterans Court program and is in good standing. 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 was diagnosed with PTSD, which, in the opinion of the Board’s Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. Applicant contends suffering from PTSD while in service is a self-authored statement. (2) Did the condition exist or experience occur during military service? Yes. Applicant contends suffering from PTSD while in service is a self-authored statement. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor could not make a mitigation determination as the applicant does not have a documented behavioral health diagnosis for consideration. Accordingly, there is no mitigation. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant had any BH conditions that outweighed the basis for applicant’s separation – FTR, wrongfully possessing a prohibited substance, wrongfully using Oxycodone on multiple occasions and theft. b. Response to Contention(s): (1) The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. Due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, youthful indiscretion does not excuse the misconduct. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined youth and immaturity alone did not outweigh the FTR, wrongfully possessing a prohibited substance, wrongfully using Oxycodone on multiple occasions and theft due to the severity of these offenses. (2) The applicant contends making bad decisions by trying to beat PTSD on the applicant’s own. The Board considered this contention and the applicant’s assertion of PTSD, however the Board determined that there is no evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation due to the severity of the offenses. 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 does not have a documented BH diagnosis that could excuse or mitigate the offenses of FTR, wrongfully possessing a prohibited substance, wrongfully using Oxycodone on multiple occasions and theft. 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 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 AR20210002957 1