AR20160000995

1. Applicants Name:

a. Application Date: 1 December 2015

b. Date Received: 4 December 2015

c. Counsel: Yes

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of his discharge from under other than honorable conditions to honorable and to change the narrative reason for his discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicants request is based on reasons of propriety and equity. An upgrade to honorable is mandated by the facts and circumstances that are presented in the attorney-brief surrounding the applicants exemplary military service record, the action of the Credentials Committee that voted to reinstate his clinical privileges and practice, the erroneous information provided to his commanders (accurate information [were not] conveyed to those who were making decisions), and the insufficient legal charges that were alleged against him. He served for 14 years honorably and faithfully as an officer in the Medical Service Corps. Since his discharge, he has been working at Lenscrafters, and taking continuing education training, including a course on Rational Prescribing Practices. The applicant is heartbroken that he will not be able to continue serving his country. He is unable to work at the VA or for the DoD because of the characterization of service. He deserves to have his record updated to reflect the character of service he put forth. An upgrade would allow him to continue serving in the military and providing his skill to Soldiers.

Per the Board’s Medical Officer, based on the information available for review at the time, the applicant had no mitigating medical or behavioral health conditions for the offenses. The Active Duty electronic medical records were reviewed.

In a personal appearance hearing conducted at Arlington, VA on 8 August 2016, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable.

(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, Paragraph 3-13 / DFS / NA / Under Other Than Honorable Conditions

b. Date of Discharge: 22 April 2014

c. Separation Facts:

(1) DD Form 458, Charge Sheet: On 1 October 2013, the following charges were preferred:

Charge I: two specifications of violating Article 92, UCMJ, for failing to obey a lawful general regulation on two separate occasions between 24 April 2013 and 31 May 2013, and between 15 February 2013 and 23 April 2013.

Charge II: two specifications of violating Article 112a, UCMJ, for wrongfully possessing some amount of testosterone, a schedule III controlled substance on divers occasions between 15 February 2013 and 13 August 2013, and wrongfully using testosterone, a schedule III controlled substance on divers occasions between 15 February 2013 and 13 August 2013.

(2) Basis for Separation: Pursuant to the applicants request for discharge under the provisions of Chapter 3, AR 600-8-24, Resignation, In Lieu of Trial by Court-Martial

(3) Recommended Characterization: Under Other Than Honorable Conditions

(4) Legal Consultation Date: 8 October 2013 (The applicant requested resignation for the good of the service in lieu of a General Court-Martial.)

(5) Administrative Separation Board: N/A

(6) Separation Decision Date/Characterization: 7 April 2014 / Under Other Than Honorable Conditions

4. SERVICE DETAILS:

a. Date/Period of Enlistment: 2 November 2012 / 1 year pursuant to Active Duty orders / administratively extended for an additional 270 days due to preferral of court-martial charges on 18 October 2013,

b. Age at Enlistment/Education/GT Score: 43 / Doctors of Optometry Degree / NA

c. Highest Grade Achieved/MOS/Total Service: O-5 / 67F, 00 Optometry / 7 years, 10months, and 17 days

d. Prior Service/Characterizations: USAR, 28 October 1999 14 September 2004 / NA
AD, 15 September 2004 14 September 2007 / HD
USAR, 15 September 2007 18 June 2009 / NA
AD, 19 June 2009 21 June 2010 / HD
USAR, 22 June 2010 – 3 August 2010 / NA
AD, 4 August 2010 – 3 August 2011 / HD
USAR, 4 August 2011 1 November 2012 / NA

e. Overseas Service/Combat Service: None

f. Awards and Decorations: ARCOM; ARCAM-4; NDSM; GWTSM; ASR; AFRMM-2

g. Performance Ratings: Two OERS rendered during period under current review:

26 September 2011 25 September 2012, Outstanding Performance, Must Promote
26 September 2012 25 September 2013, Unsatisfactory Performance, Do Not Promote

h. Disciplinary Action(s)/Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(1).
CID Report, dated 13 August 2013, indicates the applicant was the subject of an investigation for wrongful use, possession, distribution, and introduction of a controlled substance and failure to obey a general order.

i. Lost Time: None

j. Diagnosed PTSD/TBI/Behavioral Health:

Report of Mental Status Evaluation, dated 30 January 2014, indicates a diagnosis of 309.28 Adjustment disorder with mixed anxiety and depressed mood.

Report of Medical History, dated 3 February 2014, the examiner indicates the applicant was under the care of behavioral health clinic.

Report of Medical Assessment, dated 3 February 2014, indicates the applicant noted being treated for behavioral health issues, including PTSD.

5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 1 December 2015; DD Form 214; and attorney-authored petition with list of 31 enclosures.

6. POST SERVICE ACCOMPLISHMENTS: The applicant has been working at Lenscrafters, and taking continuing education training, including a course on Rational Prescribing Practices.

7. REGULATORY CITATION(S): Army Regulation (AR) 635-100 sets forth the basic authority for the separation of commissioned and warrant officers from the active Army. Chapter 3, Section XV establishes policy and procedures for involuntary relief from active duty. Paragraph 3-58(g) provides that an officer who is found guilty, or action is taken tantamount to a finding of guilty, in a Federal or State court may be immediately released from active duty by the Secretary of the Army, when the offense is punishable under the UCMJ with confinement of 1 year or more, or when the offense involves moral turpitude, regardless of the sentence received or the maximum punishment under any code.

AR 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officers. Chapter 3, 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.

A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. An officer will normally receive an under other than honorable conditions when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct.

Secretary of Defense Memorandum for Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014, by implication provided the same guidance to the Service Discharge Review Boards whose decisions are reviewable by the Service Correction Boards. That memorandum provided PTSD or PTSD-related conditions “will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.” However, the memorandum also states, “Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in the discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.”
8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of his discharge from under other than honorable conditions to honorable and to change the narrative reason for his discharge. The applicants record of service, and the issues and documents submitted with his application were carefully reviewed.

The record indicates the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. The applicant voluntarily requested resignation in lieu of trial by general court-martial.

The applicant contends his discharge was unjust because of propriety issues. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicants statements alone do not overcome the governments presumption of regularity,

In consideration of the applicant’s service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge.

The applicant contends that an upgrade of his discharge would allow him to continue serving in the military and providing his skill to Soldiers through VA or DoD. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

Although the applicant did not raise behavioral health issues, a careful review of his record indicates behavioral health disorder symptoms existed. If the Board determines the applicant’s behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service.

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.

9. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

a. The applicant submitted the following additional documents:

1. Diagnosis of medical condition 1 page
2. Resume summary 1 page
3. Medication profile, Fort Bliss 18 pages
4. Excerpt from AR 40-3 1 page
5. MI controlled substance document 1 page

b. The applicant presented no additional contentions.

c. Witness(es)/Observer(s): None

10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 8 August 2016, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable.

11. BOARD ACTION DIRECTED:

a. Issue a New DD-214: No

b. Change Characterization to: No Change

c. Change Reason to: No Change

d. Change SPD/RE Code to: No Change

e. Restore (Restoration of) Grade to: NA

AUTHENTICATING OFFICIAL:

COL, US ARMY
Presiding Officer
Army Discharge Review Board

Legend:
AWOL – Absent Without Leave GD – General Discharge NA – Not applicable SCM – Summary Court Martial
BCD – Bad Conduct Discharge HS – High School NIF – Not in File SPCM – Special Court Martial
BH Behavioral Health HD – Honorable Discharge OAD – Ordered to Active Duty SPD – Separation Program Designator
CG – Company Grade Article 15 IADT – Initial Active Duty Training OMPF – Official Military Personnel File TBI Traumatic Brain Injury
CID – Criminal Investigation Division MP Military Police PTSD Post-Traumatic Stress Disorder UNC – Uncharacterized Discharge
ELS Entry Level Status MST Military Sexual Trauma RE – Reentry UOTHC – Under Other Than Honorable Conditions
FG – Field Grade Article 15
ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE
AR20160000995

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