IN THE CASE OF: BOARD DATE: 9 March 2022 DOCKET NUMBER: AR20210005401 APPLICANT REQUESTS: in effect: * Upgrade of his (general) under honorable conditions discharge * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * eBenefits * Department of Veterans Affairs (DVA) letter * University of Phoenix transcript FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 stated he was not aware that he was suffering from post-traumatic stress disorder (PTSD) at the time, after coming home from a deployment. He made the mistake of trying to cope with what he was feeling by eating a cookie that was made with marijuana baked in. He was a good Soldier and a good man. He is currently getting help with his issues and this is a step in his process to feeling better about himself. He is rated at 70% for PTSD. He knows a lot of Soldiers mess up. He is one of those Soldiers and he is trying to right his wrongs. This correction will help him secure a better paying job for him and his kids and also help him with his mental state. He has been bothered by this since hearing of his discharge after the failed urine test. He has been getting turned down for meaningful employment because of his discharge and also the benefits that veterans can receive by state government. 3. The applicant provided: * eBenefits showing he has 100% total combined disabilities with 70% coming from PTSD and persistent depressive disorder * DVA letter showing a summary of benefits he is currently receiving from the DVA * University of Phoenix transcript showing his grades and confirmation of his Associate of Arts degree with a concentration in Information Technology 4. A review of the applicant’s service records shows: a. He enlisted in the Ohio Army National Guard (OH ARNG) on 29 June 2007. b. He entered a period of active-duty training (ADT) on 14 November 2007. He was released from ADT on 24 April 2008. He completed 5 months and 11 days of active service this period. His character of service was uncharacterized. c. He was honorably separated from the OHARNG on 7 January 2009 for enlistment in another component. He completed 1 year, 6 months, and 9 days of service this period. d. On 8 January 2009, he enlisted in Regular Army. He held military occupational specialty 89B (Ammunition Specialist). e. He served in Iraq from 30 September 2009, he reenlisted on 17 February 2010, for five years. He redeployed on 7 August 2010. He was promoted to specialist/E-4 on 1 July 2010. f. He received a separation physical on 5 December 2011. g. On 6 December 2011, he received a mental status evaluation and was found fit for full duty, including deployments. At the time his assessment shows negative for PTSD and mild Traumatic Brain Injury. h. He received non-judicial punishment on 29 December 2011 for on or about 11 September 2011 to on or about 11 October 2011, wrongfully use marijuana. He was reduced to private first class. i. On or about 1 February 2012, his immediate commander notified him that he was initiating action to separate him for misconduct – abuse of illegal drugs under the provisions (UP) of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c (2). The specific reason for the proposed action was: he tested positive for use of marijuana on 11 October 2011. He acknowledged receipt of notification. j. On 15 February 2012, he was advised by consulting counsel of the basis for the contemplated action to separate him for misconduct – abuse of illegal drugs under the provisions (UP) of AR 635-200, paragraph 14-12c (2) and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He understood: * He may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * 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 k. His commander subsequently initiated separation action against him for misconduct. His chain of command recommended he be separated prior to the expiration of his term of service with the issuance of a general, under honorable conditions character of service. The commander stated: * [Applicant]] is leveraging a friendship and previously good relation in the Company to save himself from punishment * I (the commander) feel that any lesser outcome will negatively affect the good order and discipline of the unit * Furthermore, I did not find his story credible and can longer trust this Soldier l. The separation authority approved the applicant's separation UP of AR 635-200, paragraph 14-12c (2) for misconduct – abuse of illegal drugs. He directed he be issued a general, under honorable conditions discharge. m. Accordingly, the applicant was discharged on 9 March 2012. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged UP of AR 635-200, paragraph 14-12c (2) for misconduct – abuse of illegal drugs with a general characterization of service. He completed 3 years, 2 months, and 2 days of active service. * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized: * Army Achievement Medal (2d Award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with campaign star * Non-Commissioned Officer Professional Development Ribbon * Army service Ribbon * Overseas Service Ribbon * Driver and Mechanic Badge with Driver-Wheeled Vehicle(s) clasp * Item 18 (Remarks) shows he had continuous honorable service from 20090108 – 20100216. n. On 12 December 2013, after careful review of his application, military records and all other available evidence, the Army Discharge Review Board determined that he was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of his discharge was denied. 5. By regulation, AR 15-185 (ABCMR) states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation, AR 635-200, chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. 7. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 8. MEDICAL REVIEW: Applicant is applying to the ABCMR requesting an upgrade of his General Under Honorable Conditions discharge asserting Post-Traumatic Stress Disorder (PTSD). The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, the active-duty medical record (AHLTA), and the VA electronic medical record (JLV). a. The ABCMR ROP outlines the details and circumstances of the applicant’s military history. Following prior service in the Ohio Army National Guard, applicant enlisted in the Regular Army on 8 January 2009 and served in Iraq. He was discharged on 9 March 2012 under the provisions of AR 635-200, paragraph 14-12c for Misconduct, Abuse of Illegal Drugs with a General characterization of service. Basis for the separation was that applicant tested positive for use of marijuana on 11 October 2011. b. Active-duty electronic medical records (AHLTA) list no BH conditions. Applicant was evaluated by Army Substance Abuse Program (ASAP) in November 2011 following positive UA for marijuana. He was referred for drug and alcohol education, but not enrolled in any further ASAP services. Applicant was seen for a Chapter 14 Mental Status Evaluation on 6 December 2011 that cleared him for separation. c. Review of VA electronic medical record (JLV) indicates that the applicant is 100% service connected to include 70% for combat-related PTSD. The VA medical record also diagnoses him with Alcohol Abuse, Cannabis Abuse, and Major Depressive Disorder. d. After review of all available information, applicant is diagnosed and service connected by the VA with combat-related PTSD. Given the nexus between PTSD and self-medicating with substances, there was likely an association between applicant’s PTSD and the wrongful use of marijuana that led to his separation. After applying Liberal Consideration, the Agency BH Advisor opines that applicant’s basis for separation is medically mitigated. e. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes. Applicant is diagnosed and service connected by the VA with combat- related PTSD. (2) Did the condition exist or experience occur during military service? (a) Yes. Applicant is diagnosed and service connected by the VA with combat- related PTSD. Service connection establishes that the condition existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes. Given the nexus between PTSD and self-medicating with substances, there was likely an association between applicant’s PTSD and the wrongful use of marijuana that led to his separation. After applying Liberal Consideration, the Agency BH Advisor opines that applicant’s basis for separation is medically mitigated. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding a nexus between PTSD and self-medicating with substances, there was likely an association between applicant’s PTSD and the wrongful use of marijuana that led to his separation. The Board determined relief was warranted and granted relief to upgrade the applicant’s discharge to honorable. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 issuing the applicant a new DD Form 214 for the period ending 9 March 2012.showing in: item 24 (Characterization of Service): Honorable. 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 (Separation for Misconduct) deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. a. Paragraph 3-7a(1) states an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, 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. 5. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 6. 38 USC 1110 (General - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. 38 USC 1131 (Peacetime Disability Compensation - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005401 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1