1. Applicant's Name: a. Application Date: 26 April 2016 b. Date Received: 29 April 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, due to extenuating circumstances, in an otherwise, positive military record cause him to agree to an UOTH discharge when he was in the process of receiving a valid medical discharge. When he became a "whistleblower" for witnessing Soldier abuse, he also became a subject of threats and intensified abuse, which caused him to accept the UOTH discharge after being informed that his discharge would revert within six months of his discharge due to the unusual circumstances surrounding his discharge. He is disabled 80 percent. Since his discharge, he has been homeless and unable to hold an employment-he has "frustration intolerance, cognitive difficulties, blackouts, and inappropriate emotions. He cannot legally drive. The status of his discharge hinders him and his family from further stability. If he received a proper medical discharge, there would have been no reenlistment recoupment. Per the Board's Medical Officer, based on the information available for review at the time including the applicant's case files, AHLTA and JLV. AHLTA indicates applicant had multiple BH contacts. Initially saw Behavioral Health (BH) in Jan 2009 when he presented with symptoms of PTSD-nightmares, irritability, anxiety, insomnia, intrusive thoughts. Did not meet full criteria for PTSD and was diagnosed with Adjustment DO, rule out PTSD. In Oct 09, he underwent Chapter 14 eval and was referred for evaluation of possible PTSD and TBI. He scored in positive range on PCL screen. Saw Neuropsychologist for TBI evaluation. Evaluation indicated his reported memory issues were not likely due to TBI (based on extensive neuropsychological testing and imaging studies) and he was cleared for admin separation. Saw BH on 5 Nov 09 and was diagnosed with PTSD. Reported his father and brother (who both had military histories) had PTSD also. On 16 Nov 09, he began Prolonged Exposure Therapy. Saw forensic psychiatry at Madigan AMC in late Nov 09. The forensic psychiatrist felt he did not have PTSD. His BH providers, however, disagreed and continued applicant's PTSD treatment. VA has rated the applicant as 70% service connected for PTSD. Based on the available information, the applicant has a mitigating behavioral health diagnosis-PTSD- for the misconduct leading to his discharge from the Army. As PTSD is associated with use of illicit substances to self-medicate, there is a nexus between his PTSD and his wrongful use of marijuana. As PTSD is associated with avoidant behaviors, there is a nexus between his PTSD and his offense of being AWOL In a records review conducted at Arlington, VA on 19 January 2018, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, a prior period of honorable service, homelessness, the circumstances surrounding the discharge and AWOL (i.e. in-service and post-service diagnosis of PTSD with a 70% VA service-connected disability rating) and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 10 March 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 February 2010 (2) Basis for Separation: The applicant was absent without leave on 8 May 2009, until 2 October 2009, and he tested positive for marijuana on a command-directed urinalysis. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 24 February 2010 (5) Administrative Separation Board: Waived, 24 February 2010 (6) Separation Decision Date / Characterization: 4 March 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 November 2007 / 6 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 121 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 8 months, 22 days d. Prior Service / Characterizations: RA (25 January 2005 to 31 October 2007) / HD e. Overseas Service / Combat Service: SWA / Iraq (13 November 2005 to 13 November 2006) f. Awards and Decorations: AAM; AGCM; NDSM; ICM-2CS; ASR; OSR; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Laboratory Confirmed Biochemical Test Results, dated 5 January 2010, shows the applicant tested positive for THC from an IU (Inspection, Unit) urinalysis conducted on 21 December 2009. Negative counseling statement for having a positive urinalysis for use of marijuana. MP Report, dated 7 January 2010, indicates the applicant was the subject of an investigation for wrongfully using a controlled substance, marijuana FG Article 15, dated 1 February 2010, for being AWOL on 8 May 2009, and remained absent until 2 October 2009, and wrongfully using marijuana between 21 November 2009 and 21 December 2009. The punishment consisted of a reduction to E-1, forfeiture of $723 pay per month for two months, and 45 days of extra duty and restriction. i. Lost Time / Mode of Return: 147 days (AWOL: 8 May 2009 to 1 October 2009) / applicant returned to his unit j. Diagnosed PTSD / TBI / Behavioral Health: Reports of Mental Status Evaluation, dated 27 October 2009 and 27 January 2010, indicate the applicant, may not meet standards of Chapter 3, AR 40-501, as he meets the criteria for a diagnosis of PTSD, and would need to be cleared by psychiatry for a Chapter 14 proceedings and be referred for a "Fitness for Duty Evaluation" and for a TBI evaluation. The latter report cleared the applicant to participate in any administrative process deemed appropriate by his command, and was recommended to continue treatment with his outpatient psychological appointments as scheduled. Reports of Medical Examination, and Medical History, dated 2 November 2009, indicates the applicant and the examiner noted behavioral health issues and treatment. Applicant's documentary evidence: medical record, dated 30 October 2017, shows an assessment for PTSD, and Mental Health Clinic Diagnostic Assessment, dated 17 and 18 August 2017, relates to PTSD and TBI. 5. APPLICANT-PROVIDED EVIDENCE: DD 149 (Application for Correction of Military Record), dated 26 April 2016, with self-authored statement; medical record, dated 20 October 2017; medication list, dated 30 November 2017; and Mental Health Clinic Diagnostic Assessment, dated 17 and 18 August 2017. 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 states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant's available 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. By the incident of misconduct, the applicant knowingly risked a military career and diminished the quality of his service. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or sufficient evidence 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 the discharge was unjust because due to extenuating circumstances which included becoming a whistleblower and experiencing threats, in an otherwise positive military record, he agreed to an UOTH discharge when he was in the process of receiving a valid medical discharge. 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 applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge. Additionally, regarding his experience with threats as a result of becoming a whistleblower, 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. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, 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. The applicant's contentions regarding his behavioral health issues caused by his PTSD and TBI 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 record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 19 January 2018, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, a prior period of honorable service, homelessness, the circumstances surrounding the discharge and AWOL (i.e. in-service and post-service diagnosis of PTSD with a 70% VA service-connected disability rating) and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635- 200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, Chapter 14-12a e. Change SPD/RE Code to: Change SPD to JKN / No change to RE code f. Restore 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 AR20160009005 2