1. Applicant's Name: a. Application Date: 16 February 2016 b. Date Received: 17 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 effect, according to the documentary evidence he provides and Army regulations, he was wrongfully charged. Per the Board's Medical Officer, based on the information available for review at the time, case file, AHLTA and JLV reviewed. AHLTA notes indicate applicant was separated from the Army for Rehabilitation Failure (drank while enrolled in ASAP) and positive urinalysis (type of drug not documented). VA notes indicate applicant is 30% service connected for PTSD. As basis for separation is not in file, no decision regarding mitigation can be made at this time. After carefully examining the applicant's record of service during the period of enlistment under review, the Board determined the characterization of service was improper because the government introduced a document into the discharge process revealing that the applicant had self-referred into the Amy Substance Abuse Program for substance abuse (ASAP). The Board also noted that the government introduced documents into the discharge process revealing the applicant had communicated a desire to be enrolled into the ASAP for substance abuse prior to being ordered to submit for a lawful drug test. This disclosure occurred before he was directed to participate in a unit urinalysis (command directed inspection). These are limited use information violations as defined in AR 600-85. Use of these information mandate award of an honorable characterization of service. Accordingly, in a records review conducted at Arlington, VA on 2 October 2017, and by a 5-0 vote, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. (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: 16 July 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 June 2014 (2) Basis for Separation: The applicant wrongfully used marijuana, a schedule I controlled substance between 11 October 2013 and 11 November 2013. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 11 June 2014 (5) Administrative Separation Board: Waived contingent upon receiving no less than a General (Under Honorable Conditions) discharge (6) Separation Decision Date / Characterization: 17 June 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 October 2009 / 6 years, 1 month (NIF, but according to his oath of extension of enlistment for 1 month, dated 29 November 2011) b. Age at Enlistment / Education / GT Score: 26 / Associates Degree / 115 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92G20, Food Service Specialist; 15P30, Aviation Operations Specialist; and 11B20, Infantryman) / 15 years, 6 months, 12 days d. Prior Service / Characterizations: RA (5 January 1999 to 8 January 2004) / HD RA (9January 2004 to 18 October 2009) / HD (Note 3-year reenlistment was extended at the convenience of the government) e. Overseas Service / Combat Service: SWA, Korea, Balkan / Kosovo (27 October 2001 to 21 May 2002), Yugoslavia (15 October 2002 to 17 May 2003), Afghanistan (13 April 2006 to 25 June 2006), Iraq (26 February 2008 to 14 May 2008), (8 August 2009 to 2 August 2010). Afghanistan (8 August 2012 to 6 May 2013) f. Awards and Decorations: ARCOM-3; AAM-3; AFAM; AGCM-5; NDSM; ACM-2CS; ICM-CS; GWOTEM; GWOTSM; KDSM; NCPPDR-3; ASR; OSR-6; NATOMDL-3; CAB; MUC g. Performance Ratings: Five NCOERs rendered during period of current review: 1 December 2008 thru 30 November 2009, Among the Best 1 December 2009 thru 30 November 2010, Among the Best 1 December 2010 thru 30 November 2011, Fully Capable 1 December 2011 thru 30 November 2012, Among the Best 1 December 2012 thru 31 October 2013, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment), date not available, indicates the applicant self-referred into ASAP. Patient Appointments data, in pertinent part, shows the applicant had a "walk-in" appointment on 12 November 2013 (day after Veterans Day Holiday), at 1340 hours. Memorandum for Record, dated 7 November 2013 (on a Thursday), subject: Weekly Urinalysis, rendered by a Unit Prevention Leader (UPL), indicates the applicant was randomly selected for weekly urinalysis and was telephonically notified; however, the applicant was not available due to taking his niece to the airport and by the time the samples were turned in for testing, and it was determined that he would be tested at a later date. Sworn Statement, dated 11 (sic) November 2013, rendered by the unit first sergeant, states that on 11 November 2013 (Veterans Day), the applicant telephonically informed him of having engaged in excessive drinking and use of drugs due family and duty-related issues, and that the applicant would self-enroll into ASAP on the following day, 12 November 2012. However, on 12 November 2012, the applicant had been randomly selected for urinalysis prior to the first sergeant informing the unit commander and unit prevention leader about the applicant's admission and statement that he would self-refer into ASAP. Electronic Copy of DD Form 2624, dated 25 November 2013, shows the applicant tested positive for marijuana during an Inspection Random (IR) urinalysis testing conducted on 12 November 2013. Negative counseling statements for being informed of an intent to involuntarily separate him under paragraph 14-12c, AR 635-200; and having recorded serious misconduct during his military service from 5 January 1999 to present or 24 January 2013, of three positive urinalyses on 12 August 2008, 19 September 2008, and 12 November 2013. CID Report, dated 11 December 2013, indicates the applicant was the subject of an investigation for wrongful use of marijuana. Memorandum, dated 16 June 2014, subject: Commander's Report - Proposed Separation Under AR 635-200, Chapter 14-12c(2), Misconduct-Abuse of Illegal Drugs [the applicant], indicates the commander stated at paragraph "f," that for specific and factual reason(s) separation recommended, the applicant wrongfully used marijuana, a scheduled I controlled substance between 8 July 2008 and 8 August 2008, and between 11 October 2013 and 11 November 2013. FG Article 15 dated 22 January 2014, for wrongfully using marijuana between 11 October 2013 and 11 November 2013. The punishment consisted of a reduction to E-5, forfeiture of $1,532 (suspended), 45 days of extra duty (suspended), and an oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Reports of Medical History and Medical Assessment, dated 7 December 2013 and 7 February 2014, indicate the applicant noted behavioral health issues, and the examiner noted the applicant was currently in behavioral health and that all his issues were documented in AHLTA, respectively. Commander's Request for Behavioral Health Evaluation indicates the commander's viewpoint was that the applicant had a tremendous service record that was unfortunately waived with three separate illicit drug use incidents, and that he had significant family concerns. Report of Mental Status Evaluation, dated 19 February 2014, shows a diagnoses of "AXIS I," Anxiety Disorder NOS, Cannabis Use Disorder, and a positive screening of PTSD but did not meet the full criteria for PTSD. The report also remarked that the applicant was experiencing significant symptoms of anxiety and depression, and family and marriage issues, and that he was undergoing treatment in ASAP for alcohol and cannabis-related issues. The applicant was recommended to continue his behavioral health treatment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 16 February 2016; certificate of achievement, dated 5 February 2016; VA Medical Center letter, dated 21 July 2015; Trial Defense Service memorandum, dated 15 January 2014; extract copy of pages 70 and 71, AR 600-85; memorandum for record, dated 12 November 2013; memorandum for record, dated 12 November 2013; page 1 of 2, ASAP Enrollment (self- referral); sworn statement, dated 11 November 2013; ERB, dated 19 December 2013; and Patient Lab Inquiry, dated 9 April 2014. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 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 and documents submitted with his application were carefully reviewed. Upon careful review, the applicant's service record confirms that the government introduced documents into the discharge process revealing the applicant had self-referred into the Army Substance Abuse Program (ASAP) for substance abuse. Further, documentary evidence in the record also indicates that on 11 November 2013, the applicant had informed his first sergeant that he would self-refer into ASAP on 12 November 2013, the same day he was randomly selected to participate in the unit's Inspection Random (IR) urinalysis testing. In this instance, the record shows the applicant disclosed to his chain of command that he had a substance abuse problem and that he intended to immediately enroll in ASAP, prior to being directed to participate in a unit urinalysis. Army Regulation 600-85, paragraphs 10-12a(4) and (6), under the definition of the limited use policy, stipulates in pertinent part, that the use of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings, the limited use policy limits the characterization of discharge to honorable if protected evidence is used, such as use of information that a "Soldier's self-referral to the ASAP," and the drug test results of a urinalysis conducted when the Soldier voluntarily submits to the Army rehabilitation program prior to having received an order to submit for the lawful drug test-the submission includes the Soldier communicating to a member of his chain of command of his desire to enter into ASAP. If the Board determines that this is limited use information as defined in AR 600-85, use of this information mandates award of an honorable characterization of service. Although the applicant did not present any behavioral health issues, a careful review of the applicant's record and his documentary evidence reflect that symptoms of behavioral health issues along with treatment for post-traumatic stress disorder 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. Based on the foregoing, 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: After carefully examining the applicant's record of service during the period of enlistment under review, the Board determined the characterization of service was improper because the government introduced a document into the discharge process revealing that the applicant had self-referred into the Amy Substance Abuse Program for substance abuse (ASAP). The Board also noted that the government introduced documents into the discharge process revealing the applicant had communicated a desire to be enrolled into the ASAP for substance abuse prior to being ordered to submit for a lawful drug test. This disclosure occurred before he was directed to participate in a unit urinalysis (command directed inspection). These are limited use information as defined in AR 600-85. Use of these information mandate award of an honorable characterization of service. Accordingly, in a records review conducted at Arlington, VA on 2 October 2017, and by a 5-0 vote, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. 10. BOARD ACTION DIRECTED: a. Issue a new DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160004564 6