1. Applicant’s Name: a. Application Date: 5 December 2015 b. Date Received: 9 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. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant was not in the mental frame of mind to present his case alone at the last hearing. The previous Board did not have all the facts. In light of the applicant’s deployment, his TBI, PTSD, and new evidence, his case is presented again for the Board’s reconsideration, which includes letters, and medical and recent observations that were not previously disclosed. The counsel detailed the events surrounding the applicant’s deployment to Tikrit, Iraq in 2006 and 2007, which involved in combat, blasts, roadside bombs, fire fights, and being hit by an IED. A witness has described the applicant being upbeat and carefree prior to his enlistment; however, after returning from Iraq, it was clear that his whole demeanor had changed—he has exhibited wild and unpredictable behavior. At the time of his discharge, a mental health provider had noticed the applicant needed mental health care and believed VA would provide such services. Per the Board's Medical Officer, there is a nexus between the applicant's diagnosis of Post-Traumatic Stress Disorder and some, but not all, of the charges. The applicant was diagnosed with PTSD and TBI by qualified professionals. It is possible that the PTSD symptoms were present while he was still on active duty. Because PTSD can be associated with use of illicit drugs, alcohol, and/or abuse of prescriptions medications, avoidance behavior such as going AWOL, and defiance of superiors, there is more likely than not a nexus between the PTSD and the misconduct. Making false official statements, if intentional, is not typical of PTSD. As for the diagnosis of TBI, it is possible that this condition may have been contributory. However, the extent to which TBI contributed to the misconduct is unclear given that it was not diagnosed or assessed while the applicant was still on active duty. After carefully examining the applicant’s record of service during the period of enlistment under review and hearing his testimony, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant’s service, including his combat service, his post-service, and the circumstances surrounding his discharge (i.e., the post-diagnosis of his behavioral health conditions involving PTSD, major depressive disorder, and possibly TBI, which were likely strong mitigating factors), mitigated the discrediting entry in his service record. Accordingly, in a personal appearance hearing conducted at Arlington, VA on 25 April 2016, and by a 4-1 vote, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority, under the provisions of AR 635-200, with SPD code JFF. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Misconduct (Drug Abuse) / AR 635-200, Paragraph 14-12c(2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 14 May 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 April 2008 (2) Basis for Separation: The applicant was informed of the following reasons: wrongfully using cocaine on two separate occasions; wrongfully using marijuana, oxycodone, and oxymorphone; going AWOL from his appointed place of duty; wrongfully consuming alcohol while under the age of 21; disobeying an NCO; and making two false official statements to two separate NCOs. (3) Recommended Characterization: Under Other Than Honorable Conditions discharge (4) Legal Consultation Date: 21 April 2008 (5) Administrative Separation Board: Unconditionally waived on 21 April 2008 (6) Separation Decision Date/Characterization: 1 May 2008 / Under Other Than Honorable Conditions discharge 4. SERVICE DETAILS: a. Date/Period of Enlistment: 5 January 2006 / 5 years, 19 weeks b. Age at Enlistment/Education/GT Score: 18 / GED / 88 c. Highest Grade Achieved/MOS/Total Service: E-3 / 11B1P, Infantryman / 2 years, 3 months, 10 days d. Prior Service/Characterizations: None / NA e. Overseas Service/Combat Service: SWA / Iraq (8 August 2006-26 October 2007) f. Awards and Decorations: NDSM; ICM; GWOTSM; ASR; OSR; CIB g. Performance Ratings: None h. Disciplinary Action(s)/Evidentiary Record: CG Article 15, dated 4 August 2007, for disobeying an NCO on 12 November 2006, and making false official statements to two separate NCOs on 5 and 13 July 2007. The punishment consisted of a reduction to E-2, forfeiture of $340, and 14 days of extra duty. Negative counseling statements for under-age drinking; reporting to duty with alcohol in the applicant’s system; lying to an NCO; disobeying an NCO; disrespecting NCOs; failing to report; summarizing past disciplinary issues; being outside the prescribed pass limits without authority; falsifying official government documents; lying to a commissioned officer; and failing to comply with visitation policy in enlisted quarters. FG Article 15, dated 22 February 2008, for failing to obey a lawful general regulation by wrongfully consuming alcohol while under the age of 21 on 5 January 2008, and making a false official statement on 14 February 2008. The punishment consisted of a reduction to E-1, forfeiture of $673 pay per month for two months, and 45 days of extra duty and restriction. FG Article 15, dated 16 April 2008, for wrongfully using marijuana, cocaine, oxycodone, and oxymorphone, Schedule I and II controlled substances between 18 February 2008 and 3 March 2008. The punishment consisted of forfeiture of $673 pay per month for two months, and 45 days of extra duty and restriction. Two reports indicating positive results of two separate urinalysis code IR (inspection, Random) for specimen collected on 14 February 2008, for cocaine and PO (Probable Cause) for specimen collected on 3 March 2008, for cocaine, marijuana, oxycodone, and oxymorphone. Report of Mental Status Evaluation, dated 19 February 2008, indicates the applicant was psychiatrically cleared for any administrative active deemed appropriate by his command. Report of Result of Trial indicates, on 17 March 2008, the applicant was found guilty by a summary court-martial of the following charges: Charge I, violation of Article 86, AWOL; Charge II, violation of Article 92, violating a lawful general regulation; Charge II, violation of Article 112a, wrongfully using cocaine; and Charge IV, violation of Article 134, breaking restriction. The sentence consisted of a forfeiture of $898 for one month and confinement for 30 days. i. Lost Time: 30 days (AWOL from 6 March 2008 through 10 March 2008, and per confinement orders, military confinement from 17 March 2008 through 10 April 2008 for 25 days (note that DD Form 214 erroneously has the beginning date of 15 March 2008). j. Diagnosed PTSD/TBI/Behavioral Health: Reports of Medical History and Medical Examination, dated 17 April 2008, indicate behavioral health issues, treatment, and examiner recommending applicant to continue care for depression through VA benefits, respectively. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214 for service under current review; attorney-authored petition; statement by applicant’s mother, dated 20 November 2015; medical records, dated in March 2009; Report of Medical Examination, dated 17 April 2008; Report of Medical Examination, dated 9 September 2008 (pages 1-3); Report of Mental Status Evaluation, dated 19 February 2008; licensed psychologist letter, dated 11 November 2015; statement by a certified substance abuse counselor, dated 19 November 2015; letter of support, dated 18 November 2015; ADRB CRD, dated 10 February 2014 (AR20130012911); and ERB, dated 17 August 2008. 6. POST SERVICE ACCOMPLISHMENTS: None. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), misconduct (drug abuse). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4. 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. The applicant’s record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms that the applicant’s discharge was appropriate because the quality of his 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. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a Soldier. As a Soldier, he had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career that ultimately caused his discharge from the Army. The applicant’s contentions regarding his behavioral health issues resulting from engaging in combat and TBI, and the subsequent diagnosis of PTSD were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. 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 applicant contends that an upgrade of his discharge would allow medical treatment through VA. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional document(s): Henry Ford Behavioral Health letter, dated 4 June 2008 – 1 page 2. The applicant presented no additional contentions. In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. 9. BOARD DETERMINATION: Per the Board's Medical Officer, there is a nexus between the applicant's diagnosis of Post-Traumatic Stress Disorder and some, but not all, of the charges. The applicant was diagnosed with PTSD and TBI by qualified professionals. It is possible that the PTSD symptoms were present while he was still on active duty. Because PTSD can be associated with use of illicit drugs, alcohol, and/or abuse of prescriptions medications, avoidance behavior such as going AWOL, and defiance of superiors, there is more likely than not a nexus between the PTSD and the misconduct. Making false official statements, if intentional, is not typical of PTSD. As for the diagnosis of TBI, it is possible that this condition may have been contributory. However, the extent to which TBI contributed to the misconduct is unclear given that it was not diagnosed or assessed while the applicant was still on active duty. After carefully examining the applicant’s record of service during the period of enlistment under review and hearing his testimony, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant’s service, including his combat service, his post-service, and the circumstances surrounding his discharge (i.e., the post-diagnosis of his behavioral health conditions involving PTSD, major depressive disorder, and possibly TBI, which were likely strong mitigating factors), mitigated the discrediting entry in his service record. Accordingly, in a personal appearance hearing conducted at Arlington, VA on 25 April 2016, and by a 4-1 vote, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority, under the provisions of AR 635-200, with SPD code JFF. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority, AR 635-200 d. Change SPD/RE Code to: JFF / No change to RE-Code 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 NIF - Not in File SPCM - Special Court Martial BCD - Bad Conduct Discharge HS - High School OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 HD - Honorable Discharge 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 IADT – Initial Active Duty Training RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable SCM - Summary Court Martial ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160000396 1