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 of his discharge, the applicant was heavily into drugs, in which he used to cope with his post-traumatic stress disorder (PTSD). The applicant has been sober and attends weekly therapy for drug use and PTSD. In a records review conducted on 18 January 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: 23 August 2013 c. Separation Facts: (1) Date Charges Preferred (DD Form 458, Charge Sheet): On 19 February 2013 and/or 9 May 2013, the applicant was charged with: Charge I: Violating Article 90, UCMJ: Specification 1: On diverse occasions between 14 December 2012 and 8 January 2013, willfully disobey a lawful command from Captain (CPT) S.D., his superior commissioned officer, to remain within the boundaries of Fort Bragg, NC. Specification 2: On diverse occasions between 6 August 2012 and 13 December 2013, willfully disobey a lawful command from CPT S.D., his superior commissioned officer, to have no contact or communication with Colonel (COL) R.W. Charge II: Violating Article 92, UCMJ: The Specification: On divers occasions between 31 January and 1 February 2013, fail to obey a lawful general order by wrongfully using, inhaling, or introducing into his body an aerosol spray product with the intent to create a condition of intoxication or altered state of mind. Charge III: Violating Article 112a, UCMJ: Specification 1: On 22 September 2012, wrongfully distribute Ambien, a schedule IV controlled substance. Specification 2: Withdrawn. Specification 3: On 29 November 2012, wrongfully use Oxycodone, a schedule II controlled substance. Specification 4: On 29 November 2012, wrongfully use Oxymorphone, a schedule II controlled substance. Specification 5: On 12 December 2012, wrongfully use Oxycodone, a schedule II controlled substance. Specification 6: On 12 December 2012, wrongfully use Oxymorphone, a schedule II controlled substance. Charge IV: Violating Article 121, UCMJ: Specification 1: Withdrawn. Specification 2: On diverse occasions between 1 May and 13 December 2012, steal money, of a value of $500, the property of the United Services Automobile Association (USAA) Federal Savings Bank. Specification 3: On diverse occasions between 1 May and 13 December 2012, wrongfully obtain by false pretenses, money, of a value of more than $500, the property of COL R.W. Charge V: Violating Article 123, UCMJ: Specification 1: On diverse occasions between 1 May and 13 December 2012, with intent to defraud, affix the signature of COL R.W. as an endorsement to certain checks, which would, if genuine, apparently operate to the legal harm of another. Specification 2: On diverse occasions between 1 May and 13 December 2012, with intent to defraud, affix the signature of COL R.W. to a certain writing, to wit: DD Form 1289, which would, if genuine, apparently operate to the legal harm of another. Specification 3: On diverse occasions between 1 May and 13 December 2012, with intent to defraud, utter the words, to wit: [R.W], and FW 2260331, which would, if genuine operate to the legal harm of another. Charge VI: Violating Article 134, UCMJ: Specification 1: In October 2012, wrongfully have sexual intercourse with K.P., a woman not his wife. Specification 2: On 9 December 2012, solicit Specialist (SPC) J.L. to wrongfully use or possess Percocet, a schedule II controlled substance, in violation of Article 112a, UCMJ. Specification 3: On 3 February 2011, solicit SPC C.S. to wrongfully distribute Percocet, a schedule II controlled substance, in violation of Article 112a, UCMJ. Specification 4: On diverse occasions between 1 May and 13 December 2012, wrongfully and willfully, with the intent to defraud, impersonate a commissioned officer of the U.S. Army by ordering controlled narcotic prescriptions over the telephone, and purporting to be COL R.W. a medical doctor. Additional Charge I: Violating 112a, UCMJ: Specification 1: On 28 February 2013, wrongfully use Heroin, a schedule I controlled substance. Specification 2: On 14 March 2013, wrongfully use Morphine, a schedule II controlled substance. Specification 3: On 15 March 2013, wrongfully possess Heroin, a schedule I controlled substance. (2) Legal Consultation Date: 12 August 2013 (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: 15 August 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 October 2010 / 6 years b. Age at Enlistment / Education / GT Score: 29 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 68W10, Health Care Specialist / 10 years, 11 months, 11 days / DD Form 214, item 12c, erroneously reflects 3 months, 26 days d. Prior Service / Characterizations: USN, 20 February 2001 – 1 March 2002 / HD (Break in Service) USAR 25 September 2003 – 18 July 2005 / HD USAR 19 July 2005 – 17 July 2007 / NA AD, 5 January 2007 – 17 July 2007 / HD (Concurrent Service) RA, 18 July 2007 – 28 October 2010 / HD e. Overseas Service / Combat Service: Hawaii, Japan, SWA / Iraq (7 December 2007 – 19 February 2009) f. Awards and Decorations: AAM, VUA, AGCM, NDSM, GWOTEM, GWOTSM, ICM-CS, ASR, OSR, USN/USMC OSDR, AFRM-MD, USNSSDR, CMB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet as described in previous paragraph 3c. Three Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Confinement” to “Present for Duty (PDY),” effective date 6 March 2013 (taken into custody on 4 March 2013); From “Present for Duty (PDY)” to “Confinement,” effective date 22 March 2013; and, From “Confinement” to “Present for Duty (PDY),” effective date 16 August 2013. Memorandum, subject: Letter of disqualification for the Good Conduct Medal, dated 1 July 2013, reflects the applicant’s immediate commander determined he was disqualified for the Army Good Conduct Medal for the period from 18 July 2010 and 17 July 2013 and he was counseled regarding the reason for disqualification, acknowledged receipt, and was provided the opportunity to rebut the decision. i. Lost Time / Mode of Return: The AMHRR reflects 149 days lost time which is not reflected on the DD Form 214. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been sober and attends weekly therapy for drug use and PTSD. 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. (8) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 a 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 record 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 he suffered from PTSD which affected his behavior and ultimately led to his discharge. The applicant’s AMHRR contains no documentation of PTSD diagnosis. ARBA sent a letter to the applicant at the address in the application on 25 June 2019 requesting documentation to support a PTSD diagnosis but received no response from the applicant. The AMHRR is void of a mental status evaluation. The applicant contends he has been sober and attends weekly therapy for drug use and PTSD. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation. AHLTA contains potentially mitigating BH diagnoses of Adjustment Disorder, Alcohol Dependence, Anxiety Disorder, Bereavement without Complications, PTSD, Depression with Anxiety, and Opioid Abuse and Dependence. JLV contains additional post-service BH diagnoses of Major Depression, Sedative Hypnotic abuse, and Alcohol Dependence. (2) Did the condition exist or experience occur during military service? Yes. AHLTA contains in-service BH diagnoses of Adjustment Disorder, Alcohol Dependence, Anxiety Disorder, Bereavement without Complications, PTSD, Depression with Anxiety, and Opioid Abuse and Dependence. JLV contains additional post-service BH diagnoses of Major Depression, Sedative Hypnotic abuse, and Alcohol Dependence. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor determined after reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that although the applicant has a diagnosis of PTSD, this is only partially mitigating for his some of applicant’s misconduct. There is a nexus between substance usage to manage symptoms of PTSD and willfully disobeying orders. However, the other misconduct is not part of the natural sequela of PTSD and therefore has no nexus between the PTSD diagnoses and behavior/misconduct. The other non-medically mitigated misconduct includes wrongfully distribute a controlled substance, wrongfully used a schedule II controlled substance, stole money, defraud by forgery, extra marital affair, and defraud by impersonating as a commissioned officer. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the Board concurred with the Board’s Medical Advisor that the applicant’s medical conditions listed above, including PTSD did not outweigh the applicant’s unmitigated basis of separation. The Board found that the preponderance of misconduct was not mitigated. As such, the applicant’s medical conditions do not outweigh the misconduct that was the basis for applicant’s separation. b. Response to Contention(s): (1) The applicant contends suffering from PTSD, which affected the behavior and ultimately led to the discharge. The Board liberally considered to what extent applicant’s PTSD, and other BH conditions mitigated, and if mitigated outweighed the applicant’s misconduct that was the basis for separation, and found numerous unmitigated basis for separation that were not outweighed by the applicant’s medical conditions, including PTSD. (2) The applicant contends sobriety and attends weekly therapy for drug use and PTSD. The Board recognizes this contention and appreciates the applicant’s willingness to seek assistance for Behavior Health and sobriety. c. The Board determined 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 BH diagnoses Adjustment Disorder, Alcohol Dependence, Anxiety Disorder, Bereavement without Complications, PTSD, Depression with Anxiety, and Opioid Abuse and Dependence, Major Depression, Sedative Hypnotic abuse, and Alcohol Dependence did not fully mitigate, nor outwiegh the offenses of wrongfully distributing a controlled substance, wrongfully using a schedule II controlled substance, stealing money, defrauding by forgery, having extra marital affair, and defrauding by impersonating a commissioned officer. 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 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 AR20210003239 1