1. Applicant's Name: a. Application Date: 12 January 2016 b. Date Received: 12 February 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, his discharge was handled improperly per AR-600-85. The incident that served as the basis for his discharge should have been covered under the "Limited Use Policy." Section 7-3c specifically states in AR-600-85, being discharged because of an overdose should have fallen under the "Limited Use Policy", resulting in him receiving an honorable discharge. The applicant contends that he had always been a Soldier in good standing until his overdose. He had previously attempted to inform his chain of command of his self-referral, but he was not take seriously until his overdose. He never received help with his problem, even after his overdose. He desires the upgrade for better employment opportunities and allow him to receive VA benefits. Since his discharge, he has been receiving treatment and is clean and healthy. He is attending school to become a plumber and desires to have benefits that he believes he deserves. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, the applicant had mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. Review of the military electronic medical records indicated the applicant was first seen by behavioral health in June 2009 (while deployed) for treatment of Anxiety due to occupational stressors. At the time, he denied illicit or prescription drug abuse/dependence. Upon redeployment, in January 2011, the applicant was diagnosed with TBI, PTSD, and Alcohol Abuse, with the most prominent diagnosis being substance abuse. Because these behavioral health conditions can be associated with use of alcohol and substances for self-medication, impaired judgment, and impulsivity, there is a nexus between this applicant's misconduct and his behavioral health symptoms. Given the applicant's history, there is no mention of a referral to ASAP in medical or military documents. In addition, in a memo for Commander dated 16 January 2007, it was noted that the applicant received an enlistment waiver for several misdemeanors and minor non-traffic violations, two of which entailed underage drinking and operating a vehicle while intoxicated; therefore it appears the command was aware of his drug use prior to overdose and that rehabilitative measures to prevent or intervene further drug use may not have been taken. In a records review conducted at Arlington, VA on 21 April 2017, and by a 5-0 vote, the Board noted that the government introduced a document into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. Accordingly, the Board voted to change the characterization of service to honorable In addition, evidence of record shows the applicant was notified that he was being separated under the provisions of AR 135-178, Chapter 12, paragraph 12-d and NGR 600-200, Chapter 6, paragraph 6-35i(1). The applicant's DD Form 214, block 25, reflects NGR 600-5 and block 27, reflects RE-3; however, insomuch as the applicant was ordered to Active Duty, he was subject to the governing regulation AR 635-200, paragraph 14-12c(2) (Drug Abuse). Notwithstanding the improper limited use information, the appropriate SPD code is "JKK" and the appropriate RE code is 4 for Soldiers being separated for drug offenses. In view of the foregoing, the Board found that the applicant's DD Form 214, blocks 25 and 27, contain erroneous entries. However, after carefully examining the applicant's record of service during the period of enlistment under review and considering the medical officer discussion, the Board determined the narrative reason for the applicant's discharge was too harsh based on the applicant's overall length and quality of service, to include his combat service, and the circumstances surrounding his discharge (i.e., medical issues) and as a result it is inequitable. Accordingly, the Board voted to change the narrative reason for discharge in the following manner: a. block 25, separation authority to AR 635-200, Chapter 14-12a b. block 26, separation code to JKN c. block 28, reason for separation to Misconduct (Minor Infractions) (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drugs) / NGR 600-5 / JKK / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 29 February 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 November 2011 (2) Basis for Separation: Abuse of Illegal Drugs - Tested positive for opiates and amphetamines (6 August 2011). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Waived, 15 November 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 6 February 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 January 2010 (OAD) / 1 year b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, Infantryman / 5 years, 1 month, 7 days d. Prior Service / Characterizations: ARNG, 24 January 2007 to 5 February 2007 / NA IADT, 6 February 2007 to 31 May 2007 / UNC ARNG, 1 June 2007 to 31 January 2008 / NA OAD, 1 February 2008 to 1 August 2008 / HD ARNG, 2 August 2008 to 22 August 2008 / NA OAD, 23 August 2008 to 3 January 2009 / HD ARNG, 4 January 2009 to 31 January 2009 / NA OAD, 1 February 2009 to 30 January 2010 / HD e. Overseas Service / Combat Service: SWA / Iraq (26 April 2009 to 11 January 2010) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR, AFRM-M g. Performance Ratings: 1 July 2010 thru 22 March 2011, Marginal h. Disciplinary Action(s) / Evidentiary Record: Numerous Developmental Counseling Forms for failing to meet suspense; failure to report; late for drill on multiple occasions; work performance; failure to communicate; late to work; positive urinalysis for opiates; and, failure to remove disabled vehicle. Two Personnel Action forms reflect the applicant's duty status changed from "SGT / E-5" to "CPL /E-4," for inefficiency, effective 6 November 2011 and recommendation for discharge from the ARNG for "Patterns of Misconduct (Illegal drugs)," dated 16 December 2011. Wisconsin Circuit Court Access case document, dated 22 November 2011, reflects the applicant was charged with: Disorderly Conduct, on 17 February 2011. EU EAU Claire Hospital medical records, dated 2 September 2011, reflect the applicant was admitted to the Emergency Room on 6 August 2011, after being found unresponsive. As part of his treatment the applicant was submitted to a series of laboratory tests before his discharge on 10 August 2011. Urine tests reflected: Opiates, Unconfirmed Positive. Amphetamine, Unconfirmed Positive. Lake Hallie Police Department report, date 8 August 2011, reflects the applicant was found unconscious, not breathing and unresponsive as a result of a possible overdose. The applicant was transported to EU EAU Claire Hospital. During his initial treatment the applicant stated he had previously self-referred for drug treatment. Report of Proceedings by investigating Officer/Board of Officers, dated 16 August 2011, reflects an investigation of the facts surrounding the applicant's hospitalization found in part: The applicant began self-medicating with Vicodin in June 2008; The applicant self-admitted to L.E. Phillips for a 7-day detoxification due to his Vicodin use; On 6 August 2011, the applicant was found in his residence unconscious, not breathing and unresponsive and transported to the hospital. On 6 August 2011, toxicology screens were verified and unconfirmed positive results for opiates and amphetamines in the applicant's urine/stool; On 10 August 2011, the applicant was discharged from the hospital; On 16 August 2011, the applicant admitted to the investigating officer that he was hospitalized due to heroin use Sworn Statement, dated 17 August 2011, the applicant responded to questions from his company commander regarding his hospitalization on 6 August 2011. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant attends school to become a plumber. 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 600-85, paragraph 7-3a reflects Voluntary (self) ID is the most desirable method of discovering alcohol or other drug abuse. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek rehabilitation. The Soldier's unit commander must become involved in the evaluation process. Command policies will encourage Soldiers and civilian corps members to volunteer for assistance and will avoid actions that would discourage these individuals from seeking help. Normally Soldiers with an alcohol or other drug problem should seek help from their unit commander; however, they may initially request help from their installation ASAP, a MTF, a chaplain, or any officer or noncommissioned officer in their chain of command. If a Soldier initially seeks help from an activity or individual other than his or her unit commander, the individual contacted should immediately notify the Soldier's unit commander and installation ADCO. The Limited Use policy will apply when Soldiers seek help from any of the listed personnel or organizations. Paragraph 7-3c states: Identification resulting from a Soldier seeking emergency treatment for an actual or possible alcohol or other drug overdose, not subsequent to a traffic accident or criminal offense, is considered to be a variation of volunteering. For reporting purposes, such cases will be classified as self-referral. Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members' discharges. "Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre- existing conditions which are determined not to have been incurred or aggravated while in military service." 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's separation packet contains several documents to include the applicant's medical treatment records and an AR-15 investigation, which reflect that the urinalysis test that served as the basis for his discharge was the result of his emergency room treatment. Further, the AR 15-6 investigation revealed that the applicant had self-referred previously for drug abuse treatment. Soldiers seeking treatment in an emergency room for possible drug overdose is considered to be a variation of volunteering. For reporting purposes, such cases will be classified as self-referral. The government introduced these documents into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. The applicant was notified that he was being separated under the provisions of AR 135-178, Chapter 12, paragraph 12-d and NGR 600-200, Chapter 6, paragraph 6-35i(1). The applicant's DD Form 214, block 25, reflects NGR 600-5 and block 27, reflects RE-3; however, insomuch as the applicant was ordered to Active Duty, he was subject to the governing regulation AR 635- 200, paragraph 14-12c(2) (Drug Abuse). Notwithstanding the improper limited use information, the appropriate SPD code is "JKK" and the appropriate RE code is 4 for Soldiers being separated for drug offenses. 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 provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 21 April 2017, and by a 5-0 vote, the Board noted that the government introduced a document into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. Accordingly, the Board voted to change the characterization of service to honorable In addition, evidence of record shows the applicant was notified that he was being separated under the provisions of AR 135-178, Chapter 12, paragraph 12-d and NGR 600-200, Chapter 6, paragraph 6-35i(1). The applicant's DD Form 214, block 25, reflects NGR 600-5 and block 27, reflects RE-3; however, insomuch as the applicant was ordered to Active Duty, he was subject to the governing regulation AR 635-200, paragraph 14-12c(2) (Drug Abuse). Notwithstanding the improper limited use information, the appropriate SPD code is "JKK" and the appropriate RE code is 4 for Soldiers being separated for drug offenses. In view of the foregoing, the Board found that the applicant's DD Form 214, blocks 25 and 27, contain erroneous entries. However, after carefully examining the applicant's record of service during the period of enlistment under review and considering the medical officer discussion, the Board determined the narrative reason for the applicant's discharge was too harsh based on the applicant's overall length and quality of service, to include his combat service, and the circumstances surrounding his discharge (i.e., medical issues) and as a result it is inequitable. Accordingly, the Board voted to change the narrative reason for discharge in the following manner: a. block 25, separation authority to AR 635-200, Chapter 14-12a b. block 26, separation code to JKN c. block 28, reason for separation to Misconduct (Minor Infractions) 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/RE Code to: Change SPD to JKN / No change to RE code f. Restore Grade 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 AR20160004037 1