1. Applicant's Name: a. Application Date: 15 September 2016 b. Date Received: 22 September 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 effect, that the majority of his service character was honorable and that his discharge was too harsh for the infractions that caused his release from active duty. The applicant contends he completed a little over three years of service and had disciplinary problems due to his ex-wife making false accusations. He informed his chain of command of the situation and suggested counseling and nothing was done to correct his problem. He contends he deployed in January 2005 to Iraq and had no contact with his wife at the time nor his son. In February 2005 he returned home on R&R to find his wife involved with another man. He indulged in some bad things due to the situation at hand which he regretted and ended up with a positive drug test. He returned to Iraq and completed his combat tour satisfactory with the exception of a suicide attempt due to depression. After regaining his composure and completing his deployment he returned home to some problems such as a divorce and denial to see his son which resulted in another positive drug test not knowing how to cope with his problems. He was incarcerated and then discharged. Due to a change of command his discharge was changed from general (under honorable conditions) to under other than honorable conditions. After his discharge he was alone for a while and decided to fulfill his duty as a Soldier and return to the Army if he could obtain a waiver. However, before he could he was in a car accident that left him with a reconstructed hip and ankle surgery causing him not to be able to rejoin the military. The military was and is a dream of his and due to the circumstances he cannot be the Soldier he wanted to be. Per the Board's Medical Officer, based on the information available for review at the time, case file, AHLTA and JLV reviewed. AHLTA diagnoses include Adjustment Disorder, Depression, Drug Toxicity due to overdosing with Opioids. AHLTA notes indicate applicant first presented to BH in Dec 05 while deployed after ingesting 15 Oxycontin tabs. Notes indicate he was upset because he was not able to speak to his son. In Jul 06, he presented to Social Work Services with symptoms of distress because of not being able to help his mother who had diabetes. Diagnosed with Adjustment Disorder. Next BH contact was for his discharge MSE. During this appointment, he reported depression, insomnia, decreased self-esteem. Diagnosed with Substance Use Disorder. Final BH note was in Dec 06. IN this appointment, he reported feeling irritability and anger with difficulty calming down. Stated he had been using marijuana "heavily" to treat these symptoms. Had been referred to ASAP in O6 but was not compliant. Last used MJ 3 weeks earlier. He was diagnosed with Depression and placed on Effexor. Psychiatrist wrote "No evidence or history suggestive of Bipolar Disorder or PTSD". Diagnosed with Nightmare DO, Adjustment DO with anxiety and Mixed Substance Abuse on separation MSE. Separation PULHES is 1 1 1 1 1 1. 0JLV contains only DOD content. Based on the available information, the applicant does not have a mitigating Behavioral Health condition In a records review conducted at Arlington, VA on 1 December 2017, and by a 5-0 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 Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (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: 1 March 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 December 2006 (2) Basis for Separation: The applicant was informed of the following reason: wrongfully using illegal drugs (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 13 December 2006 (5) Administrative Separation Board: On 13 December 2006, the applicant waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable then a general (under honorable condition.) discharge. The applicant's conditional waiver of an administrative separation board was disapproved and his case was referred to an administrative separation board. On 16 February 2007, the applicant voluntarily and unconditionally waived consideration of his case by an administrative separation board. (6) Separation Decision Date / Characterization: 20 February 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 February 2004 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 3 years, 9 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait / Iraq (30 January 2005 to 15 January 2006) f. Awards and Decorations: ARCOM, NDSM, GWOTEM, GWOTSM, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: There is a positive urinalysis report contained in the record coded IR, (Inspection Random), that shows the applicant tested positive for THC 95 on 12 July 2006. There is a positive urinalysis report contained in the record coded IU, (Inspection Unit), that shows the applicant tested positive for THC 61 on 26 July 2006. There is a positive urinalysis report contained in the record coded RO, (Rehabilitation Testing), that shows the applicant tested positive for THC 111 on 17 August 2006. Summary Court-Martial, dated 24 August 2006 for wrongful use of marijuana between 13 June 2006 and 12 July 2006 and 27 June 2006 and 26 July 2006. The punishment consisted of reduction to E-1 and confinement for 30 days. Counseling Statement for testing positive for THC on 17 August 2006 i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 29 November 2006, shows the applicant was diagnosed with Axis I for nightmare disorder, adjustment disorder with anxiety and mixed substance abuse. The examination consisted of a clinical interview and the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command. The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in administrative proceedings. The applicant had not been consistent in treatment in the past but was encouraged to return to both mental health and alcohol and drug counseling. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 293. 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. 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. 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 record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms that the government introduced into the discharge packet the results of a biochemical test dated 17 August 2006, coded RO (Rehabilitation Testing) and which was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in Chapter 6, AR 600-85. Use of this information mandates award of an honorable characterization of service. 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 1 December 2017, and by a 5-0 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 Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 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 (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 AR20160018444 1