1. Applicant's Name: a. Application Date: 2 June 2016 b. Date Received: 6 June 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, his discharge was inequitable because it was based on two separate incidents. He was found innocent of the second incident in a federal court. After serving nearly nine months of combat tour in Afghanistan, he struggled to cope with severe anxiety and depression. He was also diagnosed with severe hearing loss which required using hearing aids. Unfortunately, he was abusing alcohol to cope. On 9 September 2015, he made the regrettable mistake of reporting to duty while intoxicated. He received a non-judicial punishment (Article 15) which resulted in a monetary fine, reduction in rank, and extra duty. That did not end as on 30 October 2015, he was arrested for DUI by the military police while attempting to enter the Fort Campbell Army base. He had not been drinking nor was he under the influence of any substance. He was shocked to learn from his public defender that the reason for arresting him on suspicion of DUI was because he had pale skin and watery eyes. The MPs took him to the base hospital for a blood draw, although he insisted he had not been under the influence, which his blood test proved. This was perceived to be an alleged pattern of misconduct, so his commander decided to separate him involuntarily. The suspected DUI took nearly five months of court proceedings and at his federal public defender's request, the DUI charges were dismissed on 4 May 2016. Despite the dismissal, the Army had already begun the process of separating him. His public defender advised him to petition his commanding officer to halt his involuntary separation. However, weeks following his arrest, he suffered severe anxiety and depression, which caused him to be admitted to an in-patient treatment facility for nearly four weeks. After being treated poorly by the Army, he decided not to fight his involuntary separation. He served his country honorably for nearly four years, received an ARCOM for meritorious service while serving a combat tour in Afghanistan and an AGCM. He is proud of his service but also bitter and frustrated with the manner in which he was treated by the Army. He was given a GD because he was a junior Soldier, and not an NCO. During his service, he witnessed several senior NCOs being involuntarily discharged for DUI or under similar circumstances, and nearly all were given an Honorable discharge. His transition to civilian life has been difficult. Per the Board's Medical Officer, the applicant had true mental health issues, however, his substance abuse was compromising all the treatment interventions. As evident by the applicant's VA records he continues to use substances. Therefore, his misconduct can only be partially mitigated if at all. In a records review conducted at Arlington, VA on 9 August 2017, and by a 3-2 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of a biochemical test which was coded RO (Rehabilitation Testing) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. The inclusion of the test administered as part of the applicant's rehabilitation program is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was proper and equitable and the Board voted not to change it. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 12 May 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 April 2016 (2) Basis for Separation: The applicant was informed of the following reasons: He failed to report to his appointed place of duty on 31 March 2016. He failed to report to his appointed place of duty on 9 September 2015. He was incapacitated to perform his duties due to a previous overindulgence of alcohol on 9 September 2015. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Waived, 21 April 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 May 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 July 2012 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, 2B Infantryman / 3 years, 9 months, 27 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (7 February 2014 to 30 October 2014) f. Awards and Decorations: ARCOM; AAM; AGCM; NDSM; ACM-CS; GWOTSM; ASR; OSR; NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Army Substance Abuse Program (ASAP) Enrollment, dated 9 September 2015, shows the applicant was command-referred into the program. Negative counseling statements for having a positive urinalysis while enrolled in ASAP; failing to be at his appointed place of duty at the prescribed time; being drunk on duty; being recommended for an involuntary separation; and having a second alcohol-related incident, CG Article 15, dated 24 February 2016, for failing to go to his appointed place of duty at the prescribed time on 9 September 2016, and being incapacitated for the proper performance of his duties on 9 September 2016. The punishment consisted of a reduction to E-3, forfeiture of $485, and 14 days of extra duty and restriction. Electronic copy of the DD Form 2624, dated 1 March 2016, shows the applicant tested positive for "OxMor" during a Rehabilitation Testing (RO) urinalysis testing conducted on 21 January 2016. The report also indicated the applicant was being treated at ASAP, and cleared for administrative separation from a psychological perspective. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 27 January 2016, shows an AXIS I diagnoses of Anxiety Disorder Unspecified, Opioid Use Disorder, and Alcohol Use Disorder. Reports of Medical Examination and History, dated 11 and 2 December 2015, indicates the applicant had diagnoses and ongoing treatment for behavioral health issues, and was hospitalized for depression and anxiety, respectively. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 2 June 2016, and DD Form 149 (Application for Correction of Military Record), dated 2 June 2016; and Federal Public Defender letter, dated 24 May 2016, with docket sheet. Additional evidence: Applicant's letter, dated 22 August 2016, with listed enclosures of medical and treatment documents. 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 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3. 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. 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 incidents of misconduct, the applicant knowingly risked a military career and diminished the quality of his service. The record further confirms that the government introduced into the discharge packet the results of a biochemical test which was coded RO (Rehabilitation) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. The applicant's contentions regarding his behavioral health issues after his deployments were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues 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 other Soldiers with similar offenses whom were discharged received an honorable characterization of service. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. In view of the limited use violation, 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 records review conducted at Arlington, VA on 9 August 2017, and by a 3-2 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of a biochemical test which was coded RO (Rehabilitation Testing) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. The inclusion of the test administered as part of the applicant's rehabilitation program is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was proper and equitable and the Board 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 Authority to: No Change e. Change SPD/RE Code to: No Change 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 AR20160010951 3