1. Applicant's Name: a. Application Date: 24 January 2017 b. Date Received: 21 February 2017 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 requests an upgrade to be able to provide for his family with the best health care, and to be able to send his kids to college. He does not have any felonies, misdemeanors, or drug / alcohol charges on his record and he is drug free. In a records review hearing conducted at Arlington, VA on 9 April 2018, and by a 5-0 vote, the Board determined the discharge was improper. The record shows the government introduced into the discharge packet the results of a biochemical test which was classified as limited use 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 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. (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 May 2007 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 11 February 2007 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; he tested positive for marijuana (28 August 2006). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 17 February 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 8 March 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 June 2004 / 4 years b. Age at Enlistment / Education / GT Score: 21 years / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19K10, M1 Armor Crewman 6 years, 8 months, 4 days d. Prior Service / Characterizations: RA, 30 August 2001 to 29 June 2004 / HD e. Overseas Service / Combat Service: SWA / Iraq, 4 October 2006 to 10 April 2007 f. Awards and Decorations: AGCM, ICM, GWOTEM, GWOTSM, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The record contains a positive urinalysis test coded CO (Competence for Duty/Command Direct/Fitness for duty), dated 28 August 2006, for marijuana. FG Article 15 dated, 8 December 2006, for wrongful use of marijuana between (28 July 2006 and 28 August 2006); forfeiture of $687 pay for two months, extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation dated, 13 January 2007, relates the applicant had an Axis I diagnosis of cannabis abuse. The mental heath professional determined the applicant would not respond to Command efforts at rehabilitation (such as transfer. disciplinary action or reclassification), or to any behavioral health treatment methods currently available in any military behavioral health facility. He was psychiatrically cleared for any administrate action deemed appropriate by command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two 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 and the issues and documents submitted with his application were carefully reviewed. The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 28 August 2006, which was coded CO (Competence for Duty/Command Direct/Fitness for duty). This 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. 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 hearing conducted at Arlington, VA on 9 April 2018, and by a 5-0 vote, the Board determined the discharge was improper. The record shows the government introduced into the discharge packet the results of a biochemical test which was classified as limited use 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 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 Code to: Change SPD Code to JKN f. Change RE Code to: Change RE Code to 3 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 AR20170003462 3