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, applicant was discharged honorably. Only recently did applicant find out the discharged was other than honorable. Applicant was in Iraq from March 2003 until January 2004. Applicant was awarded the Bronze Star for actions there. Applicant served honorably from November 1995 until this incident occurred. The applicant made a mistake while in Iraq and humbly asks for forgiveness. In a records review conducted on 6 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 600-8-24, Chapter 3-13 / DFS / NA / General (Under Honorable Conditions) b. Date of Discharge: 30 November 2004 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 10 June 2004, the applicant was charged with: Charge 1: Violation of the UCMJ, Article 92: Specification: The applicant did at or near Forward Operating Base Scunion, Iraq, on divers occasions between July 2003 and 18 February 2004, violate a lawful order issued by MAJ C. to not sign out prescription medication for E/204 FSB and to stop removing prescription medication from the controlled substances box and to instead forward all prescription request to MAJ C. or CPT L. Charge II: Violation of the UCMJ, Article 112(a): Specification 1: The applicant did at or near Forward Operation Base Scunion, Iraq, on or about 20 February 2004, wrongfully possess approximated 24 pills of Zolpidem Tartrate, a Schedule IV controlled substance, while receiving special pay under 37 U.S.C. §310. Specification 2: The applicant did at or near Forward Operation Base Scunion, Iraq, on divers occasions between on or about August 2003 to February 2004, wrongfully use Percocet Oxycodone, a Schedule II controlled substance, while receiving special pay under 37 U.S.C. §310. Specification 3: The applicant did at or near Forward Operation Base Scunion, Iraq, on divers occasions between on or about August 2003 to February 2004, wrongfully use Morphine Sulfate, a Schedule II controlled substance, while receiving special pay under 37 U.S.C. §310. Specification 4: The applicant did at or near Forward Operation Base Scunion, Iraq, on divers occasions between on or about November 2003 to February 2004, wrongfully use Demerol Meperidine Hydrochloride, a Scheduled II controlled substance, while receiving special pay under 37 U.S.C. §310. (2) Legal Consultation Date: 19 June 2004 (3) Basis for Separation: Pursuant to applicant’s request for discharge under the provisions of Chapter 3, AR 600-8-24, Resignation, In Lieu of Trial by Court-Martial. (4) GCMCA Recommended Characterization: Under Other Than Honorable Conditions (5) DASA (Review Boards) Decision Date/Characterization: 20 October 2004 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 14 September 2001 / NIF b. Age at Appointment: / Education: 33 / Bachelor’s Degree c. Highest Grade Achieved / MOS / Total Service: O-2 / 65D, Physician Assistant / 9 years, 23 days d. Prior Service / Characterizations: RA, 9 November 1995 – 10 May 1999 / HD RA, 11 May 1999 – 13 September 2001 / HD e. Overseas Service / Combat Service: SWA / Iraq (9 April 2003 – 11 March 2004) f. Awards and Decorations: ARCOM, AAM-3, GWOTEM, GWOTSM, AGCM, NDSM-2, ASR, BSM, CMB g. Performance Ratings: 23 November 2002 – 25 June 2003 / Best Qualified 26 June 2003 – 25 June 2004 / Do Not Promote h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. GO Article 15, dated 15 March 2002, for being AWOL from on or about 14 November 2001, until on or about 16 November 2001; and failing to go at the time prescribed to appointed place of duty on multiple occasions between 14 November 2001 – 25 February 2002. The punishment consisted of forfeiture of $1000 pay per month for two months. General Officer Memorandum of Reprimand, undated, for being disrespectful toward a superior commissioned officer, failing to report to assigned duty location on multiple occasions, and personal conduct unbecoming an officer. CID Report - Initial, dated 24 February 2004, reflects that during a health and welfare inspection it was disclosed expended packaging of controlled substances in the living area of the applicant. Preliminary investigation disclosed the applicant, a physician’s assistant, stole various controlled substances and wrongfully used them. The applicant was medically evacuated from Iraq, to Germany for further testing and evaluation. ABCMR Record of Proceedings, Docket Number: AR20100017450, dated 22 February 2011, reflects the applicant appealed correction of his DD Form 214 with a separation date of 30 November 2004, to show awards of the Bronze Star Medal and Combat Medical Badge. In processing the applicant’s request, it was noted that on 20 October 2004, the DASA (ARBA) approved the applicant’s discharge action and directed that he receive an under other than honorable conditions discharge. The transition center at Fort Hood, Texas, erroneously characterized his service as honorable. ARBA corrected the error to reflect an under other than honorable conditions discharge instead of an honorable discharge. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: VA medical records indicate that the applicant is 70% service connected for combat-related PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; two DD Forms 214. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. (1) Paragraph 1-23, provides the authorized types of characterization of service or description of separation. (2) Paragraph 1-23a, states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under DODI 5200.02 and AR 380–67 for reasons that do not involve acts of misconduct for an officer. (3) Paragraph 1-23b, states an officer will normally receive a general (under honorable conditions) characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 1-23c, states a discharge under other than honorable conditions is an administrative separation from the service. A discharge certificate will not be issued. An officer will normally receive an under other than honorable conditions when he or she: Resigns for the good of the Service; is dropped from the rolls (DFR) of the Army in accordance with paragraph 5–9; (3) is involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under DODI 5200.02 and AR 380–67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed; and, is discharged following conviction by civilian authorities. (5) Chapter 3 prescribes the tasks, rules, and steps for processing voluntary resignations. Except as provided below, any officer of the Active Army or USAR may tender a resignation under provisions of this chapter. The Secretary of the Army or his designee may accept resignations and orders will be issued by direction of the CG, HRC. An officer whose resignation has been accepted will be separated on the date specified in DA’s orders or as otherwise directed by the DA. An appropriate discharge certificate as specified by the CG, HRC, will be furnished by the appropriate commander at the time the officer is separated. The date of separation, as specified or directed, will not be changed without prior approval of HQDA nor can valid separation orders be revoked subsequent to the specified or directed date of separation. Except when resignation is under section VI of this chapter, USAR officers in an AGR status or on ADT, ADSW, TTAD and Soldiers on AD pursuant to 10 USC 12304 (Presidential Selected Reserve) will request resignations under the provisions of AR 135–175. Before such a request is submitted, they must be released from their AD status. (6) Paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial. (7) Paragraph 3-i. An officer separated under this paragraph normally receives characterization of service of under other than honorable conditions. 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 “DFS” as the appropriate code to assign Officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 3-13, in lieu of trial by court-martial. 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 being honorably discharged and recently found out the discharge was under other than honorable. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The Transition Point at Fort Hood, TX, erroneously characterized the service as honorable, but during an appeal to the ABCMR, the error was discovered and administrative action was accomplished by ARBA Case Management Division to correct the applicant’s DD Form 214 to reflect the characterization of service directed by the separation approving authority. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends the event which led to the discharge from the Army was an isolated incident, the applicant made a mistake while in Iraq and humbly asks for forgiveness. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 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 and determined the applicant is diagnosed with combat-related PTSD which could mitigate the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor arrived at this finding based upon the applicant’s diagnosis of combat-related PTSD that is service connected by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board’s Medical Advisor opined that while PTSD mitigated applicant’s substance usage due to self-medication, violating a lawful order on divers occasions are not mitigated since PTSD does not impact one’s ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB’s application of liberal consideration, the Board concurred with the Board’s Medical Advisor that the applicant’s unmitigated offense of violating a lawful order on divers occasions outweighed the applicant’s combat-related PTSD owing the extent of unmitigated misconduct that led to applicant’s discharge from the Army. b. Response to Contention(s): (1) The applicant contends being honorably discharged and recently found out applicant actually was discharged under other than honorable. The Board determined the AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The Transition Point at Fort Hood, TX, erroneously characterized the service as honorable, but during an appeal to the ABCMR, the error was discovered and administrative action was accomplished by ARBA Case Management Division to correct the applicant’s DD Form 214 to reflect the characterization of service directed by the separation approving authority. (2) The applicant contends good service, including a combat tour. The Board considered applicant’s quality of service in its deliberation but determined 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 violating a lawful order, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident, a mistake was made while in Iraq and humbly asks for forgiveness. The Board considered this contention, but concluded this was not an isolated incident but rather repetitive disregard to good order and discipline over a period of time for personal gain. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration, the applicant’s BH diagnoses of combat-related PTSD did not mitigate the offense of violating an order on divers occasions which is part of applicant’s basis of separation. The Board determined that the applicant’s unmitigated offense of violating a lawful order on divers occasions outweighed the applicant’s combat-related PTSD. 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 AR20210003332 1