1. Applicant's Name: a. Application Date: 4 February 2016 b. Date Received: 18 February 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, he had a lot of ongoing issues prior to and at the time of his discharge that affected him mentally. He was on orders to Germany. His son was born in 2009, and the anticipation of being separated from his family because his sponsor in Germany informed him that he would be deploying once he arrived in Vilseck scared him. He also had not taken proper antibiotics, nor did he have any follow-ups after his 2008 MRSA surgery to his abdominal wall due to his Air Assault training and impending PCS overseas. Upon completing the Air Assault training, he was discharged for smoking marijuana. (The applicant detailed his medical issues, and the issues following his air assault training.) The applicant asserts that following his discharge: he became homeless; he was employed by MWR; he had another child in 2014; and he received an associate of applied science degree in computer science and intermediate management Staff College. He concludes with providing information of his current medical issues, including behavioral health issues. The record indicates the applicant had a prior records review in 2013. Per the Board's Medical Officer, based on the information available for review at the time, AHLTA indicates diagnoses of Adjustment Disorder with depression and Insomnia. The VA medical record indicates that the applicant has undergone a Compensation and Pension (C&P) examination which diagnosed him with Bipolar Disorder II. Other diagnoses noted in his VA Problem List include PTSD (non-combat, related to violence he experienced from growing up in a violent neighborhood and from being affiliated with a violent gang before entering the Army), Anxiety Disorder and Explosive Personality Disorder. As per the Agency psychiatrist, based on the available information, there are no mitigating behavioral health diagnosis for the offenses leading to his discharge from the Army. In a record review hearing conducted at San Antonio, TX on 20 March 2017, and by a 5-0 vote, the Board determined the characterization of service was improper. The Board noted that Army Regulation 635-200 requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. (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 / General (Under Honorable Conditions) b. Date of Discharge: 14 August 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 August 2009 (2) Basis for Separation: The applicant was informed of the following reasons: wrongfully used controlled substance, THC; committed assault on two separate occasions; and, insubordinate towards an NCO on four separate occasions. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 August 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 10 August 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 August 2008 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 42A10, Human Resources Specialist / 4 years, 26 days d. Prior Service / Characterizations: RA, 23 November 2004 to 28 February 2005 / UNC ARNG, 21 December 2006 to 4 February 2007 / NA IADT, 5 February 2007 to 8 June 2007 / HD ARNG, 9 June 2007 to 2 July 2007 / HD RA, 3 July 2007 to 26 August 2008 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Summarized Article 15, dated 10 December 2007, for assaulting PFC G. (27 October 2007). The punishment consisted of seven days of extra duty. FG Article 15, dated 13 February 2008, for assaulting PFC G. (21 January 2008) and disobeying a superior commissioned officer (29 January 2008). The punishment consisted of a reduction to E-2, forfeiture of $754 pay per month for two months, and 45 days of extra duty and restriction. CG Article 15, dated 6 August 2008, for disobeying an NCO on two separate occasions (9 June 2008) and being disrespectful in language towards an NCO on two separate occasions (9 June 2008). The punishment consisted of 10 days of extra duty and restriction. FG Article 15, dated 23 June 2009, for wrongfully using THC, a schedule I controlled substance (3 June 2009). The punishment consisted of a reduction to E-2, forfeiture of $784 per month for two months (suspended), and 45 days of extra duty and restriction. Report of Mental Status Evaluation, dated 9 July 2009, psychiatrically cleared the applicant for any administrative action deemed appropriate by his command. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, although he was homeless since his discharge, he was employed by MWR, had another child in 2014, and attained his associate of applied science degree in computer science and intermediate management staff college. 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. Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a or 14-12b as appropriate. 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), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members' discharges. "Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre- existing conditions which are determined not to have been incurred or aggravated while in military service." "Conditions documented in the 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 PTSD or PTSD related conditions 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 under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service 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 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 his general (under honorable conditions) discharge to honorable. The applicant's record of service and the issues 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, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and marred the quality of his service. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends that medical and family issues contributed to his discharge from the Army. However, the service record does not support the applicant's contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. The applicant contends that he was having family issues, such as the birth of his son and being separated from him due to receiving information he would be deployed once he arrive at his unit in Germany, affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant contends that when he was discharged, he became homeless. However, eligibility for housing supportive program benefits for Veterans 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. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. In consideration of the applicant's post-service accomplishments, the Board can find that his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The unit commander's notification memorandum to the applicant, dated 3 August 2009, contained offenses the applicant committed in a prior period of service. Specifically, three Article 15 punishments the applicant received on 10 December 2007, 13 February 2008, and August 2008, were imposed for the offenses cited as the basis for initiating the separation. The government's presumption of regularity cannot be applied in this case because the command used misconduct from a previous enlistment and the separation authority did not specifically state the earlier misconduct were not considered for the purpose of characterization. Army Regulation 635-200, paragraph 3-8b(2)(a), specifically requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular and the Army Discharge Review Board must consider this as an issue of fact when determining the applicant's characterization of service. Further, the unit commander's forwarding memorandum with a recommendation to the separation authority, at paragraph 1f, the unit commander stated that the specific, factual reason for action recommended was, wrongful use of a controlled substance. The discharge was not consistent with the procedural and substantive requirements of the regulation, was not within the discretion of the separation authority, and the applicant was not provided full administrative due process. 9. BOARD DETERMINATION: In a record review hearing conducted at San Antonio, TX on 20 March 2017, and by a 5-0 vote, the Board determined the characterization of service was improper. The Board noted that Army Regulation 635-200 requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change SPD / RE Code to: No Change e. Restore (Restoration of) Grade to: No Change AUTHENTICATING OFFICIAL: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer 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 NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160003250 1