ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180016084 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 23 September 2018, with self- authored statement * DA Form 4980-14 (Army Commendation Medal Certificate), dated 11 July 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 November 2010 * Certificate of Achievement and Completion from the Mental Health Residential Rehabilitation Treatment Program, Department of Veterans Affairs (VA), dated 6 April 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, that he was given a general discharge after he failed a urinalysis for Methylenedioxymethamphetamine (MDMA) [Ecstasy]. However, this was the only time he ever got into trouble. This occurred after he returned from Iraq; he deployed four months after he arrived to the 241st Port Operations Detachment. He had never touched drugs before deploying. He's not the same person since he returned from Iraq. He was diagnosed with post-traumatic stress disorder (PTSD) and comorbid opioid dependency. He was recently awarded service-connected disability at 100 percent (%). He used and continues to use to cope with what he felt and what he still deals with. His drug use was a direct result of his deployment. 3. The applicant enlisted in the Regular Army on 8 August 2006. 4. The applicant deployed to Kuwait from on or about 29 April 2007 through on or about 15 July 2008. The personnel qualification documents contained in his record (e.g. his Enlisted Records Brief) do not substantiate his service in Iraq. 5. The applicant's record contains a memorandum from the Forensic Toxicology Drug Testing Lab (FTDTL), which shows he provided a urine sample on 16 August 2010, as part of a random unit urinalysis inspection, and that sample tested positive for MDMA. 6. The applicant was counselled and enrolled into the Army Substance Abuse Program (ASAP) on 23 August 2010, based on his positive urinalysis result from 16 August 2010. 7. The applicant’s commander requested a medical opinion from a psychiatrist to see if there was a medical reason for his positive urinalysis. The examining psychiatrist stated: At the command's request I interviewed [the applicant] this morning to determine if there were any medical reason that could explain the positive urine drug screen for the substance MDMA that was obtained from the service member in the last few days. During our interview I was able to gain enough information to determine that he meets diagnostic criteria for Multiple Substance Dependence, Active but not for any other psychopathologic diagnosis. I also could not imagine any medical reason or explanation for [the applicant’s] behavioral choice to use MDMA. That being said, I can tell you that [the applicant] reports that the use of this substance, and alcohol previously, has provided him some relief from symptoms of elevated arousal that he has experienced since his return from Iraq in 2008. These symptoms are not of a severity or complexity to justify any specific diagnosis, and should therefore be referred to as sub-clinical. They also do not represent a necessary reason for an individual to use substances of potential abuse, but they appear to have provided some justification for these actions in the mind of [the applicant]. 8. The applicant underwent a separation physical on 24 August 2010. The relevant DD Form 2807-1 (Report of Medical History) he completed shows he complained of "worrying about little things. Lonely." The provider indicated this was due to his current situation causing him stress. 9. The applicant received nonjudicial punishment (NJP) on 13 September 2010, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the wrongful use of MDMA/Ecstasy between on or about 14 August 2010 and on or about 16 August 2010. His sentence included his reduction to the rank/grade of private (PV2)/E-2. 10. The applicant underwent another separation physical. The relevant DD Form 2808 (Report of Medical Examination) shows he was deemed qualified for further service and/or separation. 11. The applicant underwent a mental status evaluation on 29 September 2010. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had the mental capacity to understand and participate in board proceedings, was mentally responsible, and contained the following statement: Based on this patient's evaluation at McDonald Army Health Center Behavioral Health Clinic on 20100812, the diagnostic impressions (within AR [Army Regulation] 40-501 [Standards of Medical Fitness], AR 635-200 [Active Duty Enlisted Administrative Separations], and the Diagnostic and Statistical Manual (DSM IV) are as follows: Axis I: POLYSUBSTANCE DEPENDENCE Axis II: DEFER Axis III: NONE Axis IV: OCCUPATIONAL PROBLEMS Axis V. GAF 63-65 REMARKS This service member was evaluated at the commander's request IAW regulations pertaining to separation under CH 14-12C (COMMISION OF SERIOUS OFFENSE); AR 635-200. Results of this evaluation are based on Soldier's self-report, clinical assessment, and information provided by Soldier's commander. Results of the evaluation show that this service member is responsible for his/her behavior, has the ability to distinguish right from wrong and possesses sufficient mental capacity to participate in administrative proceedings. This evaluation expires in 6 months from date of signature. The Service Member has been screened and does not have TBI and PTSD. 12. The applicant's commander notified the applicant on 20 October 2010 that actions had been initiated to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – abuse of illegal drugs. The applicant acknowledged receipt of the notification on the same day. 13. The applicant's commander formally recommended the applicant's separation on 20 October 2010, under the provisions of Army Regulation 635-200, paragraph 14-12c, Commission of a Serious Offense, Misconduct – Abuse of Illegal Drugs. 14. The applicant declined the opportunity to consult with counsel on 21 October 2010. He waived all of his rights and to elected not to submit statements in his own behalf. He acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He understood that if he received a discharge/character of service that was less than honorable, he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, that an act of consideration by either board does not imply his discharge will be upgraded. 15. The applicant’s intermediate commander recommended his separation on 27 October 2010, under the provisions of Army Regulation 635-200, paragraph 14-12c. 16. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge under the provision of Army Regulation 635-200, paragraph 14-12c, Commission of a Serious Offense, Misconduct – Abuse of Illegal Drugs, and directed that he receive a DD Form 257A (General Discharge Certificate). 17. The applicant was discharged on 10 November 2010, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – abuse of illegal drugs. His service was characterized as under honorable conditions (general). 18. The applicant applied to the ABCMR to correct item 18 (Remarks) of his DD Form 214 to show he deployed to Iraq rather than Kuwait; however, the Board denied his request on 26 March 2014. He also applied to the ADRB, asserting he had overcome a heroin habit; however, after developing PTSD, he used ecstasy. The Board determined the discharge was proper and equitable and denied relief on 3 November 2015. 19. The Army Review Boards Agency (ARBA) Case Management Division requested the applicant provide a copy of any medical documents in his possession that shows he was diagnosed with or treated for PTSD. However, the applicant did not respond to this request. 20. The applicant provides a copy of an Army Commendation Medal Certificate that shows he supported Operation Iraqi Freedom, and a U.S. Department of Veterans Affairs, Mental Health Residential Rehabilitation Treatment Program, Certificate of Achievement and Completion, which shows he completed the program on 6 April 2018. 21. In the processing of this case, an advisory opinion was obtained on 14 August 2019 from the ARBA Senior Medical Advisor/Staff Psychologist, who opined: a. The Department of Defense (DoD) electronic medical record (AHLTA) indicates [the applicant] was command referred to ASAP in August 2010 with diagnoses of Opioid Abuse and Amphetamine Dependence. [The applicant] reported he was drinking before, during, and after the duty day and using opioids or ecstasy obtained from friends or off the streets. He noted daily ecstasy use months prior to the referral. [The applicant] reported being happy he was leaving the Army. Although he did not want to pursue treatment, he attended mandatory individual and group appointments until separation. [The applicant] was command referred to behavioral health in August 2010 denying any behavioral health symptoms, stating he took "molly" to release stress. He denied being in a "combat related job," stating he was a cargo specialist. The psychiatrist noted any psychological symptoms were subclinical, i.e. not PTSD, and "do not represent a necessary reason for an individual to use substances…but appear to have provided some justification for these actions in the mind of [the applicant]." b. A review of VA medical records indicated [the applicant] is 70% service connected for PTSD, combat related. He has been in and out of substance abuse treatment programs, both VA and non-VA, as well as outpatient care with minimal success related to noncompliance, inappropriate behavior, and ongoing drug use. c. Based on a thorough review of available records, active duty records document, [the applicant] denied being in combat and two separate evaluators determined he did not have PTSD. However, per liberal consideration guidance, his post-service diagnosis and combat service connection for PTSD mitigates the basis for separation. 22. The advisory opinion was forwarded to the applicant on 19 August 2019, for his review and to provide him the opportunity to comment and/or rebut the findings. He did not respond. 23. The Board should consider the applicant's statement, the entirety of his record, and the ARBA advisory opinion in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include his deployment, his awards, the frequency and nature of his misconduct and the reason for his separation. The Board considered the conclusion of the advising official stating his post-service diagnosis and combat service connection for PTSD mitigated the applicant’s misconduct. After considering the advisory and the applicant’s misconduct, the Board determined, by preponderance of evidence, that an upgrade of his character of service was appropriate. Based on the content of his award recommendation, the Board also determined that his service as noted in item 18 of his DD Form 214 was in error. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 10 November 2010 to reflect in item 18 (Remarks) – Service in “Iraq” vice “Kuwait” and in item 24 (Character of Service) – “Honorable” vice General, under honorable conditions”. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. The Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance, on 25 August 2017, for the Secretary of Defense directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards were instructed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. The Office of the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20180016084 7 1