1. Applicant's Name: a. Application Date: 20 July 2016 b. Date Received: 22 July 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, that his discharge was inequitable because it was based on an isolated incident during his period of service. He also believes he was unfairly treated by his chain of command. He contends he received and completed his UCMJ punishment then was punished again for the same thing by being discharged. He believes his command officials lied when speaking to the USARAK Commanding Generals about his intent to speak with him. This prevented him from speaking to the General until after his change of command. He does not believe he was afforded the opportunities to use the open door policies of all members of his chain of command. Also he was told that he would be retained on active duty and later discharge, he was required to sign documents or face additional punishment and he was denied the ability to speak with JAG prior to signing the documents. 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 a medical or behavioral health condition that was mitigating for the offenses which led to his separation from the Army. Although SM was not diagnosed with PTSD while in service, there is evidence SM exhibited PTSD-like symptoms at the time of misconduct. Although he was determined to meet medical retention standards IAW Chapter 3, AR 40-501 at the time of separation, it is uncertain if his medical condition of PTSD was fully considered during separation processing since he received only minimal counseling to address behavioral health symptoms prior to his treatment ending. Medical records indicated he self-referred to behavioral health and screened high (10/10) on a PTSD questionnaire, but only was seen for one behavioral health appointment prior to ASAP enrollment which primarily focused on substance use and not combat stress symptoms. It is in the opinion of this provider that SM needed further evaluation. In summary, because PTSD symptoms can be associated with use of substances for self-medication, there is a nexus between this applicant's misconduct (drug abuse) and his behavioral health symptoms. In a records review conducted at Arlington, VA on 4 October 2017, and by a 5-0 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include combat service, board judgement and the circumstances surrounding the discharge (i.e. PTSD-like symptoms and the BN and CO Commanders supported retention) mitigated the discrediting entry in the service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 26 July 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 June 2010 (2) Basis for Separation: The applicant was informed of the following reason: testing positive for cocaine (3) Recommended Characterization: General (Under Honorable Conditions) / The evidence in the records also show the unit and intermediate commander's recommended the applicant be retained in the United States Army. (4) Legal Consultation Date: 3 June 2013 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 17 June 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 September 2006 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 127 c. Highest Grade Achieved / MOS / Total Service: E-4 / 35M1P, Humint Collector / 3 years, 11 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (1 March 2009 to 1 March 2010) f. Awards and Decorations: ARCOM, AGCM, NDSM, GWOTSM, ACM-CS, ASR, OSR- 2, NATOMDL, CAB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: There is a positive urinalysis report contained in the record coded: IR (Inspection Random), dated 24 March 2010, that shows the applicant tested positive for Cocaine on 9 March 2010. There is a second positive urinalysis report contained in the record coded: IR (Inspection Random), dated 1 April 2010, that shows the applicant tested positive for Cocaine on 22 March 2010. CID Report, dated 3 May 2010, which shows the applicant was the subject of investigation for wrongful possession and use of cocaine. FG Article 15, dated 17 May 2010, for wrongful use of cocaine between 5 March 2010 and 22 March 2010. The punishment consisted of reduction to E-1, forfeiture of $723 pay per month for two months, and 45 days extra duty and restriction. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation, dated 21 April 2010, shows the applicant was diagnosed with an Axis I for Cocaine Abuse. It was noted that he had the mental capacity to understand and participate in the proceedings and was mentally responsible. He was psychiatrically cleared for any administrative action deemed appropriated by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; discharge approval memorandum; unit commander's recommendation memorandum; memorandum's of support at the time of discharge; Article 15; notification memorandum; letters to United States Senator Ron Wyden; and DD Form 214. 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 states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 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 record confirms 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. Furthermore, by violating the Army's policy not to possess or use illegal drugs, the applicant compromised the trust and confidence placed in a Soldier. 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 and diminished the quality of her service below that meriting an honorable discharge. 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, such that he should have been retained on Active Duty. The applicant seeks relief contending, in effect, that his discharge was inequitable because it was based on an isolated incident during his period 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 contends he was unfairly treated by his chain of command; he received and completed his UCMJ punishment then was punished again for the same thing by being discharged. He believes his command officials lied when speaking to the USARAK Commanding Generals about his intents to speak with him. This prevented him from speaking to the General until after his change of command. He does not believe he was afforded the opportunities to use the open door policies of all members of his chain of command. Also he was told that he would be retained on active duty and later discharge, he was required to sign documents or he would face additional punishment and he was denied the ability to speak with JAG prior to signing documents. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unfairly treated or that he was lied to by his chain of command. It was noted that the unit commander had recommended that the applicant be retained on active duty and that he receive a general (under honorable conditions) discharge. It was also noted that the applicant was made aware by the unit commander that the intermediated commander and the separation authority were not bound by his recommendations. 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. 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 4 October 2017, and by a 5-0 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include combat service, board judgement and the circumstances surrounding the discharge (i.e. PTSD-like symptoms, BN and CO Commanders supported retention) mitigated the discrediting entry in the service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 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 AR20160013299 1