1. Applicant's Name: a. Application Date: 19 December 2017 b. Date Received: 20 December 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable, a narrative reason change and a reentry (RE) code change. The applicant seeks relief contending, in effect, the applicant's administrative separation that led to his second discharge was wholly improper and inequitable. The applicant deserves an honorable discharge for the many years of service in which he served his command, his branch of service, and his country honorably. During the applicant's first enlistment, he achieved the rank of Specialist. After finishing basic training, the applicant was assigned to the 10th Mountain Division, where as a junior Soldier, he quickly asserted himself as an adept leader and he was assigned to a position on the scout platoon. The applicant is a veteran of both Operation Enduring Freedom and Operation Iraqi Freedom, and he has received numerous awards for his accomplishments to include the Purple Heart. After an unnaturally hard seven years, the applicant needed to get rid of the pain from his first wife's rape early in his career, the life altering experiences of combat deployments, near death experiences, the suicide of his first wife, the death of his father, and the adulterous actions of his second wife. In an attempt to rid himself of the daily mental anguish, the applicant tried meth for the first time. Although he did not know at the time, his difficulty coping with the events in his life and his drug use tied to an underlying problem that until this time had gone undiagnosed: the applicant was suffering from the effects of PTSD as well as TBI that he incurred during his first enlistment. The decision to award the applicant a general (under honorable conditions) discharge was both improper and inequitable because: (1) his on-going, and voluntary substance abuse treatment at the time of his failed urinalysis precluded the results of that urinalysis being used against him; (2) his PTSD should have prevented him from ever being allowed to reenlist and return to active service; and, (3) the applicant's tragic home life, coupled with his PTSD, had a significant negative effect on his ability to serve. The applicant's less than honorable discharge coupled with drug use as the narrative reason for separation does not accurately reflect his entire period of service. Because his service record is evidence of seven years of exemplary and distinguished service to the country as a Ranger and Special Forces Soldier in the Army, the applicant is entitled to an honorable discharge. The applicant suffers and has suffered from PTSD since his first enlistment, making the struggles he was facing both at work and at home, often seem insurmountable. One need only look at the applicant's continued efforts to support and advocate for other former servicemen and women even after he has long since dropped his pack and been forced to step out of uniform. He states his conduct since his separation from the Army has been exemplary and demonstrates a level of service, selflessness and esprit de corps that has long been a foundational pillar of the United States Armed Forces. He has thrived in both his professional and personal capacities, and more importantly he has served as a model representative for his country, his branch of service and his family since he left active duty. The applicant remarried in 2017, and welcomed his third child into the world in the summer of 2017. He currently lives with his wife and children in Arizona and he has accomplished a plethora of academic achievements. He subsequently started his own private company teaching CPR and Advanced Cardiac Life Support and is pursuing his degree in Nursing. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, there is insufficient evidence to determine if the applicant had a medical or behavioral health condition that was mitigating for the offenses which led to his separation from the Army. A review of electronic military medical records indicated diagnoses of an Adjustment Disorder, Alcohol Abuse, Anxiety, Depression, Marital Problem, and PTSD. Behavioral health treatment primarily consisted of services from FAP (starting in 2006) and ASAP (starting in 2014) for methamphetamine dependence. Behavioral health treatment focused on anger issues and disruptive conduct that was tied to marital discord. Medical notes indicated leadership was concerned about his explosive anger and potential to act out aggressively, particularly towards his wife. Medical note dated 7 February 2014 indicated SM was command referred to ASAP after admitting to his Command that he had been using meth after taking a unit US on 3 February 2014. SM reported his command requested the UA after SM was stopped at the gate, had his vehicle searched and found in possession of a firearm and drug detox it. Medical note dated 21 February 2014 indicated SM was seen in the ED after being escorted in for having homicidal ideation towards his wife. Medical note dated March 2014 indicated SM was acting paranoid, physically aggressive (kicking doors), hitting walls, vague threats, and making erratic statements and behavior. He was taken to ED and did not calm down until MPs came with a dog. In summary, medical notes reflect significant treatment for substance use and problems related to marital discord and PTSD. However, the basis of separation was not clearly identified. In a records review hearing conducted at Arlington, VA on 28 March 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200 / Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 9 October 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: Based on the separation authority's decision memorandum, an administrative separation board convened on 15 July 2014 and recommended that the applicant be discharged with a characterization of service of general (under honorable conditions). In September 2014, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge with a characterization of service of general (under honorable conditions). (6) Separation Decision Date / Characterization: In September 2014, the separation authority approved the findings and recommendation of the administrative separation board and directed the applicant's separation under the provisions of AR 635-200, Chapter 14-12c (2), Misconduct (Drug Abuse). / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 July 2011 / 5 years b. Age at Enlistment / Education / GT Score: 30 / 1 year college / 122 c. Highest Grade Achieved / MOS / Total Service: E-6 / 18D2V 5W, Special Forces Medical Sergeant / 11 years, 9 months, 10 days d. Prior Service / Characterizations: RA, 30 January 2002 - 31 October 2005 / HD RA, 1 November 2005 - 15 September 2006 / HD RA, 28 September 2007 - 4 July 2011 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (7 January 2005 - 7 April 2005), Iraq (5 October 2005 - 9 January 2006) f. Awards and Decorations: PH, ARCOM-V, AAM-2, AGCM-3, NDSM, ACM-A, GWOTSM, ICM-CS, ASR, CIB g. Performance Ratings: 1 June 2009 - 31 August 2012 / Among The Best 1 September 2012 - 28 March 2013 / Fully Capable 29 March 2013 - 30 September 2013 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 28 August 2013, for behaving with disrespect toward Major G, by questioning Major G's decisions, the tone and inflection of his voice, and presenting a threatening demeanor by sliding to the edge of his chair, grasping the ends of the armrest and planting his feet as if he were going to push off and lunge forward. The punishment consisted of forfeiture of $769 pay (suspended); extra duty and restriction for 14 days; and, an oral reprimand. Record Of Supplementary Action Under Article 15, UCMJ, dated 19 February 2014, reflects the suspended portion of the punishment was vacated because the applicant wrongfully used methamphetamine between on or about 29 August 2013 and 3 February 2014. Electronic Copy of DD Form 2624, dated 20 February 2014, reflects the applicant tested positive for DAMP 871 (amphetamine), DMETH 12677,> LOL (methamphetamine) during an Probable Cause (PO) urinalysis testing, conducted on 3 February 2014. FG Article 15, dated 28 February 2014, for wrongfully using amphetamine and methamphetamine (between 31 January and 3 May 2014). The punishment consisted of a reduction to E-5; forfeiture of $1,538 pay per month for two months (suspended); extra duty and restriction for 45 days; and, an oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Fort Carson, medical record, dated 13 January 2014, reflects the applicant was diagnosed with an Adjustment Disorder with Anxious Mood. The applicant admitted to the attending physician that he had been abusing a substance for the past year and that he had 12 days of sobriety. Fort Carson Medical Department Activity memorandum, dated 5 August 2014, reflects that the applicant had not been able to work in his MOS for one year. He had been clean and sober for four months and he continued to have signs and symptoms of PTSD that prevent him from being able to function in any capacity in the military. In the staff psychiatrist's opinion his PTSD did cause him to fall below retention standard. Letter from Licensed Psychologist. MM, PH.D., reflects the applicant is a 50 percent service connected for PTSD student veteran who was referred by Professor K H, Director of the Veterans Advocacy Law Clinic at the University of Arizona to interview this veteran, review military records of the applicant and render an opinion regarding his diagnosis of post-traumatic stress disorder versus personality disorder caused by drug use. The psychologist opined that the applicant is a victim of being misdiagnosed as demonstrated by recent studies (e.g., Tayyeb & Greenburg, 2017) and GAO report (Comptroller Gen. of the U.S., FPCD-80-13, Military Discharge Policies & Practices Result In Wide Disparities: Congressional Review Is Needed, (1980). Such misdiagnosis is the reason for the "Fairness for Veterans Act, 2016" (RR. 4683, 114th Cong., 2016), which if the applicant's case is reviewed under this standard would clearly conclude that he has suffered from PTSD and not a "personality disorder due to substance use." 5. APPLICANT-PROVIDED EVIDENCE: The applicant provided a DD Form 293 with allied legal brief and the enclosures listed in the brief. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has thrived in both his professional and personal capacities, and more importantly he has served as a model representative for his country, his branch of service and his family since he left active duty. The applicant remarried in 2017, and welcomed his third child into the world in the summer of 2017. He has accomplished a plethora of academic achievements; subsequently started his own private company teaching CPR and Advanced Cardiac Life Support; and, he is pursuing his degree in Nursing. 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(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 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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4. 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, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable, a narrative reason change and a reentry (RE) code change. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c (2), by reason of Misconduct (Drug Abuse), with a characterization of service of General (Under Honorable Conditions) Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. The applicant, as a NCO, 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 marred the quality of his service. The applicant's contentions about his on-going, and voluntary substance abuse treatment at the time of his failed urinalysis precluded the results of that urinalysis being used against him, were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c (2), AR 635- 200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the VA has granted him a service connected disability for PTSD; and, it was this undiagnosed condition that affected his behavior and ultimately led to his discharge. The applicant provided a copy of his active duty medical record, dated 13 January 2014, which reflects the applicant was diagnosed with an Adjustment Disorder with Anxious Mood. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The applicant's service record is void of a mental status evaluation. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong. The applicant contends his less than honorable discharge coupled with drug use as the narrative reason for separation does not accurately reflect his entire period of service. However, the applicant's characterization of service reflects the period under review and not his entire active duty service. The discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends that he had good service which included two combat tours. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant contends that he was having family issues that affected his behavior and ultimately caused him to be discharged. However, 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. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. Based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review hearing conducted at Arlington, VA on 28 March 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a new DD-214/Issue new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD Code to: No Change f. Change RE Code 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 AR20180001538 5