1. APPLICANT’S NAME: a. Application Date: 29 August 2014 b. Date Received: 23 February 2015 c. Counsel: Yes 2. REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general, under honorable conditions discharge to honorable and a change to the narrative reason for separation. The applicant states, in effect, that his command used the incorrect notice procedure. He believes he should receive liberal consideration for PTSD as a mitigating factor and his record is incomplete on his participation in ASAP which suggests he may not have exhausted rehabilitative efforts. In a personal appearance review conducted at Arlington, Virginia on 16 November 2015, and by a 5-0 vote, the Board after carefully examining the applicant’s record of service during the period of enlistment under review and hearing his testimony, determined the discharge was inequitable based on the applicant’s length and quality of service, his combat service, and the circumstances surrounding the discharge (i.e., medical evacuation from theater, diagnosis of chronic PTSD and other mental health conditions; resulting in 90 percent service connected disability rating from the Department of Veterans Affairs). Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason in the following manner: a. block 25, separation authority to AR 635-200, Chapter 14-12b, b. block 26, separation code to JKA, and c. block 28, reason for separation to Pattern of Misconduct (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: 26 February 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 January 2009 (2) Basis for Separation: The applicant was informed of the following reasons: Receiving a Field Grade Article 15, for the wrongful use of marijuana and cocaine, disorderly conduct, resisting arrest, driving while drunk and two specification of drinking underage; and Receiving a Field Grade Article 15 for drinking underage (24 November 2008) (3) Recommended Characterization: Under Other than Honorable Conditions (4) Legal Consultation Date: 15 January 2008 (5) Administrative Separation Board: None (The applicant voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than general, under honorable conditions) (6) Separation Decision Date/Characterization: 10 February 2009/General, Under Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 24 August 2006/3 years and 17 weeks b. Age at Enlistment/Education/GT Score: 18 years/GED/108 c. Highest Grade Achieved/MOS/Total Service: E-3/11B10, Infantryman/2 years, 6 months, and 1 day d. Prior Service/Characterizations: None e. Overseas Service/Combat Service: Southwest Asia/Iraq (070201-070628) f. Awards and Decorations: NDSM, GWOTSM, ICM-w/CS, ASR, CIB g. Performance Ratings: None h. Disciplinary Action(s)/Evidentiary Record: A Military Police Report, dated 6 April 2008, that indicates the applicant was the subject of an investigation for drunken driving, driving with no valid operator's license issued, refusal to submit to a preliminary breath test, and maxing speed limits A General Officer Administrative Reprimand, for driving under the influence of alcohol on 6 April 2008, with a BAC of .233 percent CID Report dated 13 May 2008, which indicates the applicant was the subject of investigation for the wrongful use of cocaine, marijuana and dangerous drugs Article 15, imposed on 13 August 2008, for resisting apprehension by officer J.A.D., an armed force policeman (080722), driving with an alcohol concentration equal to or exceeding .08 grams, wrongfully using marijuana between (080115 and 080213), wrongfully using cocaine between (080207 and 080213), consuming alcohol while under the legal drinking age of 21 (080722 and 080431), and drunk and disorderly conduct which was of a nature to bring discredit upon the armed forces (080722). The punishment consisted of reduction to the grade of E-1, forfeiture of $673.00 pay per month for two months, extra duty for 45 days, restriction for 45 days (suspended), and an oral reprimand (FG) A Record of Supplementary Action under Article 15, UCMJ, dated 19 November 2008, which vacates the suspension of punishment of restriction for 45 days imposed on 13 August 2008, for wrongfully violating KSA 41-727, by consuming alcohol while under the legal drinking age of 21 Article 15, imposed on 24 November 2008, for consuming alcohol while under the legal drinking age of 21. The punishment consisted of forfeiture of $673.00 pay per month for one month, extra duty and restriction for 45 days, and an oral reprimand (FG) Several negative counseling statements dated between 1 May 2008 and 25 October 2008, for alcohol free billets, lying to a noncommissioned officer, underage drinking, physical profile, and separation in accordance with AR 635-200, Chapter 14-12c i. Lost Time: The DD Form 214 under review shows the applicant had two days of time lost during this period of service 22 October 2007 to 23 October 2007; however, the reason for this time lost is not supported by documents in the record j. Diagnosed PTSD/TBI/Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: A DD Form 293, dated 29 August 2014; a legal brief from the applicant's lawyer; and a copy of the applicant's disability benefits questionnaire. 6. POST SERVICE ACCOMPLISHMENTS: None. 7. REGULATORY CITATION(S): Chapter 14 allows for separation for misconduct with paragraph 14-1 allowing for separating personnel because of minor disciplinary infractions; a pattern of misconduct; commission of serious offense; conviction by civilian authorities; desertion; or absence without leave. Paragraph 14-2 states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a Soldier further effort is not likely to succeed; rehabilitation is impracticable or the Soldier is not amenable to rehabilitation. 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. 8. DISCUSSION OF ISSUE(S): The applicant seeks relief contending his command used the incorrect notice procedure. He believes he should receive liberal consideration for PTSD as a mitigating factor, and his record is incomplete on his participation in the Army Substance Abuse Program (ASAP) which suggests he may not have exhausted rehabilitative efforts. The applicant’s request for an upgrade of the characterization of his discharge and a change to his narrative reason for discharge was carefully considered. However, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career, marred the quality of his service by receiving two Articles 15 for multiple violations of the Uniform Code of Military Justice, receiving a General Officer Administrative Reprimand for driving under the influence of alcohol, along with other acts of underage drinking, and receiving several negative counseling statements. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. Furthermore, reference the applicant narrative reason for discharge. 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, paragraph 14-12c(2), for drug offenses. The regulation further stipulates that no deviation is authorized. The applicant contends his command used the incorrect notice procedure. However, records show, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct (serious offense) for drug abuse and recommended a characterization of service of UOTHC. On 15 January 2009, the applicant, after consulting with legal counsel, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions. The applicant contends he should receive liberal consideration for PTSD as a mitigating factor in an upgrade of his discharge. It was noted in the defense counsel's statement dated 11 January 2009, that the applicant had a diagnosis of PTSD. However, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct (drug abuse). It appears the applicant’s PTSD diagnosis may have been the basis for his receiving a general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge. The applicant also contends his record is incomplete of his participation in ASAP which suggests he may not have exhausted rehabilitative efforts. The contention was noted; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the ASAP counseling center for assistance. It appears before initiating discharge proceedings, the command ensured the applicant was appropriately counseled about his deficiencies which could lead to separation. The command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier. The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies. As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service and separation action was initiated. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant’s discharge is commensurate with his overall service record. In view of the foregoing, the Board determined the discharge is inequitable. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and the applicant was provided full administrative due process. 9. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: a. The applicant submitted the following additional document(s): (1) Academic Transcripts - (2 pages) (2) VA Psychological Examination, February 2009 – (7 pages) b. The applicant presented the following additional contention(s): Requested change to Re-Code In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. 10. BOARD ACTION DIRECTED: a. Issue a new DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Pattern of Misconduct d. SPD/RE Code Change to: JKA/Separation Authority to AR 635-200, Chapter 14-12b e. Restoration to Grade: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NA - Not applicable SCM- Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial CG - Company Grade Article 15 HD - Honorable Discharge OAD - Ordered to Active Duty UNC - Uncharacterized Discharge CID - Criminal investigation Department MP – Military Police OMPF - Official Military Personnel File UOTHC - Under Other Than FG - Field Grade IADT – Initial Active Duty Training RE - Reentry Honorable Conditions ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150003632 1