1. Applicant's Name: a. Application Date: 1 March 2016 b. Date Received: 4 March 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for his discharge. The applicant states, in pertinent part and in effect, his discharge is inequitable because it was based on one incident in his over eight years and seven months of service with no other adverse action and/or incident. He suffered from a PTSD that resulted from his deployments. His medical records will show his diagnoses of PTSD and other health issues. He received two AGCMs, and was three months from receiving his third AGCM. An upgrade would allow him to receive his VA benefits, and it would allow him to move forward with his career. Per the Board's Medical Officer, based on the information available for review at the time, it appears to be a typical case of a Soldier using cannabis or other drugs to self soothe. The applicant proved treatment resistant and had two positive UAs for cannabis during his rehabilitative treatment. His deployments to Iraq and Afghanistan, during which he earned a Combat Action Badge, as well as his psychiatric history, support mitigation of his misconduct. The applicant has variety of AHLTA diagnoses that include Adjustment Disorders, Anxiety, Cannabis Abuse (12 ASAP visits from 21 March 2012 to 18 July 2012) and PTSD (12 visits from 11 April 2012 to 26 July 2013). According to the diagnosing psychologist, the PTSD was deployment related. In a records review conducted at Arlington, VA on 17 May 2017, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of two biochemical tests which were coded RO (Rehabilitation) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was proper and equitable and the Board voted not to change it. (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 / Under Other Than Honorable Conditions b. Date of Discharge: 1 November 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 August 2012 (2) Basis for Separation: The applicant attempted to wrongfully possess psilocybin, and wrongfully possessing and using marijuana. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 9 August 2012 (5) Administrative Separation Board: Waived, 9 August 2012, pursuant to an approved Offer to Plead Guilty, dated 2 July 2012 (6) Separation Decision Date / Characterization: Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 May 2008 / 6 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-5 / HS Graduate / 110 d. Prior Service / Characterizations: RA, 1 October 2003 to 28 May 2008 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (6 December 2004 to 2 April 2005, 27 November 2006 to 14 February 2008), Afghanistan (27 April 2009 to 10 June 2010) f. Awards and Decorations: JSCOM; ARCOM-2; JSAM; AAM; AGCM-2; NDSM; ACM- 2CS; ICM-2CS; GWOTEM; GWOTSM; NCOPDR-2; ASR; OSR-2; CAB g. Performance Ratings: 1 October 2008 thru 30 June 2009, Fully Capable 1 July 2009 thru 30 June 2010, Among the Best 1 July 2010 thru 10 April 2011, Among the Best 11 April 2011 thru 13 March 2012, Marginal h. Disciplinary Action(s) / Evidentiary Record: Army Substance Abuse Program (ASAP) Enrollment, dated 12 March 2012, indicates the applicant was enrolled into the program by his command. Electronic copy of the DD Form 2624, dated 12 April 2012, shows the applicant tested positive for marijuana during a Probable Cause (PO) urinalysis testing conducted on 10 March 2012. Electronic copy of the DD Form 2624, dated 24 April 2012, shows the applicant tested positive for marijuana during a Rehabilitation Testing (RO) urinalysis testing conducted on 2 April 2012. Electronic copy of the DD Form 2624, dated 30 May 2012, shows the applicant tested positive for marijuana during a Rehabilitation Testing (RO) urinalysis testing conducted on 7 May 2012. Offer to Plead Guilty, dated 2 July 2012, the applicant agreed to plead guilty to the charges and their specifications that were referred to a Summary Court-Martial, and upon acceptance by the convening authority, the applicant agreed to waive his right to an administrative separation board that was being initiated as a result of the charges, and agreed not to request of the government to produce witnesses outside Germany for the purposes of presentence proceedings. Result of Trial by Summary Court-Martial, dated 8 August 2012, reported that on 24 July 2012, the applicant was found guilty of the following charges and its specification(s): Charge I: Violations of the UCMJ, Article 81, two specifications of the applicant conspiring with other Soldiers to commit wrongful possession of 21 grams of marijuana, and to effect the conspiracy, the applicant did possess 10 grams of marijuana on 10 March 2012, and conspiring with other Soldiers to commit an attempt to wrongfully possess 75 grams of Psilocybin, a Schedule I controlled substance, and to effect the conspiracy, the applicant did possess 15 grams of Psilocybin on 10 March 2012. Charge II: Violation of the UCMJ, Article 111, the applicant operated a vehicle while impaired by marijuana on 10 March 2012. Charge III: Violations of the UCMJ, Article 112a, two specifications of wrongfully possessing 15 grams of Psilocybin on 10 March 2012, and three specifications of wrongfully using marijuana on 10 March 2012, 2 April 2012, and 7 May 2012. The adjudged sentence consisted of a reduction to E-4, and restriction for two months. The sentence was approved on 8 August 2012. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical Assessment, dated 12 March 2012, Report of Medical Examination, dated 2 April 2012, and Report of Medical History, dated 12 March 2012, all reflect that the applicant and the examiner noted the applicant being treated for behavioral health issues and PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; NCOER, ending period 30 June 2010; Concussion/Headache Disposition sheet; and sick slips, dated 7 December 2010 and 29 November 2010. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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, paragraph 14-12c(2), 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. 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." "Conditions documented in the 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 PTSD or PTSD related conditions 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 under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD or PTSD-related conditions as a causative factor 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. Correction Boards will also exercise caution 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 requests to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for his discharge. The applicant's available/record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms that the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant, as an 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 provided no independent corroborating evidence demonstrating that either the command's action was erroneous or sufficient evidence that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The record further confirms that the government introduced into the discharge packet the result of two separate biochemical tests which were coded RO (Rehabilitation) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. The applicant contends the incident that caused his discharge was the only one in his over nine years of service. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant's contentions regarding his behavioral health issues which involved being diagnosed with PTSD after his deployments, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. In consideration of the applicant's service accomplishments and quality of his service prior to these incidents, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant contends his current discharge denies him VA benefits, and the opportunity to progress in his career. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635- 5-1 for a discharge under Chapter 14, paragraph 14-12c(2) is "Misconduct (Drug Abuse)," and the separation code is JKK. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 not provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 17 May 2017, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of two biochemical tests which were coded RO (Rehabilitation) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was proper and equitable and the Board voted not to change it. 10. BOARD ACTION DIRECTED: a. Issue a new DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160005424 1