1. Applicant's Name: a. Application Date: 24 May 2016 b. Date Received: 27 May 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant seeks relief contending, in effect, he did not receive any help regarding his drug issue. He was young and needed guidance. If his drug issues was addressed properly he would still be in the Army. He would not have had any of these issues if he did not enlist. He looks retrospectively at the situation and feels his leadership did not care about him. He desires to use the GI Bill to attend school. He was diagnosed with PTSD, anxiety and depression. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, the applicant had a medical or behavioral health condition that was mitigating for the offenses which led to his separation from the Army. SMs electronic military medical records indicated a diagnosis of Anxiety and Opiod Abuse. SM returned from Iraq December 2009 and was first seen by behavioral health in February 2010 for anxiety symptoms and sleep difficulty and was prescribed Zoloft and Xanax. He was seen again by behavioral health in April 2010 for depression, anxiety and sleep problems which he attributed to deployment. He was first seen by ASAP 9 April 2010 for Opioid abuse. ASAP note indicated SM was caught with Xanax and although he was prescribed this medication, it was found in a different bottle and he was suspected of selling it. He later admitted to taking Xanax more than he should have and that he had become dependent on the medication. A Mental Status Evaluation dated 22 June 2010 indicated diagnoses of Anxiety and Opioid intoxication. He screened negative for PTSD and TBI and was psychiatrically cleared for administrative action. VA medical records indicated SM is 100% service connected for PTSD. VA medical notes indicated SM has concerns related to homelessness and alcohol and cocaine abuse. In summary, SMs diagnosis of PTSD can be associated with the misuse of drugs and/or alcohol; therefore, there is a nexus between this applicant's misconduct (drug abuse) and his behavioral health symptoms. In a record review hearing conducted at Arlington, VA on 1 March 2018, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, arbitrary and capricious actions by the chain of command, a period of homelessness, the circumstances surrounding the discharge (i.e. in-service opiate dependency and 100% VA disability rating for PTSD) 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 change to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. (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: 3 August 2010 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 13 July 2010 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he tested positive for marijuana and methylenedioxymethamphetamine; and he failed to report to his appointed place of duty on divers occasions. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 14 July 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 July 2010 / General (Under Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 May 2008 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 years / GED Certificate / 94 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B1O, Infantryman / 3 years, 14 days d. Prior Service / Characterizations: USAR, 9 October 2007 to 20 May 2008 / UNC e. Overseas Service / Combat Service: SWA / Iraq, 12 January 2009 to 19 December 2009 f. Awards and Decorations: ARCOM, NDSM, ICM-CS, GWOTSM, ASR, OSR, MUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15 dated, 27 March 2009, for wrongful use of cocaine between (30 November 2008 and 2 December 2008); reduction to PVT / E-1, forfeiture of $699 pay for two months, extra duty and restriction for 45 days. The record contains a positive urinalysis test coded IO (Inspection Other), dated 6 April 2010, for MDMA and THC. i. Lost Time / Mode of Return: Confinement civil authority for 11 days, 22 May 2010 until 3 June 2010. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation dated, 28 June 2010, relates the applicant had an Axis I diagnosis of anxiety, not otherwise specified (NOS) and opioid intoxication. The applicant met retention standards prescribed in Chapter 3, AR 40-501 and there was no psychiatric disease or defect which warrants disposition through medical channels. He was screened for TBI and PTSD and did not meet diagnostic criteria for these disorders. He was mentally responsible, able to distinguish right from wrong and adhere to the right. He had the mental capacity to understand and participate in any administrative (or judicial) action deemed appropriate by command. He was cleared to be administratively in accordance with AR 635 -200 Chapter 14. VA claim decision for service connected compensation dated 15 January 2015, relates the applicant was assigned a temporary 100 percent disability evaluation for service connected PTSD (formerly evaluated as depressive disorder, effective 15 August 2014. An evaluation of 30 percent is assigned from 1 October 2014. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); substance abuse certificate of completion; DD Form 214; and a VA claim decision (five pages). 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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. 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 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. 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 the characterization of service from general (under honorable conditions) to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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 trust and confidence placed in a Soldier. 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 diminished the quality of his service below that meriting an honorable discharge at the time of separation. 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 seeks relief contending, he did not receive any help regarding his drug issue. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self- referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. The applicant further contends, he was young and needed guidance. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The applicant also contends, if his drug issues was addressed properly he would still be in the Army; and he would not have had any of these issues if he did not enlist. The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. The applicant additionally contends, he looks retrospectively at the situation and feels his leadership did not care about him. 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. Furthermore, the applicant contends, he was diagnosed with PTSD, anxiety and depression. The applicant submitted a VA document with his application that shows he was assigned a temporary 100 percent disability evaluation for service connected PTSD (formerly evaluated as depressive disorder, effective 15 August 2014. An evaluation of 30 percent is assigned from 1 October 2014. The applicant desires to use the GI Bill to attend school. 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. 9. BOARD DETERMINATION: In a record review hearing conducted at Arlington, VA on 1 March 2018, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, arbitrary and capricious actions by the chain of command, a period of homelessness, the circumstances surrounding the discharge (i.e. in-service opiate dependency and 100% VA disability rating for PTSD) 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), the separation code to JKN, and the reentry code to RE-3. 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 / Change to RE code to 3 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 AR20160010092 1