1. Applicant's Name: a. Application Date: 16 June 2016 b. Date Received: 26 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 pertinent part and in effect, he served honorably for five years, including a combat tour in support of OIF. He earned an ARCOM, AGCM, and several other medals for honorable service. His discharge is inequitable because he served more than three-fourth honorably, and yet the one-fourth overshadows all the good he had done for his country. His chain of command chose to discharge him four months prior to his ETS date. He was a good Soldier who is proud to have served and will serve again, without hesitation. Per the Board's Medical Officer, based on the information available for review at the time, the applicant has an AHLTA diagnosis of Adjustment Disorder with Disturbance of Emotions and Conduct. The JLV showed him to have a 40% service connected disability rating from the VA as of 18 September 2017. His VA problem list included Major Depressive Disorder (June 2012). His mental health conditions did not mitigate his instances of misconduct that led to his discharge. After carefully examining the applicant's record of service during the period of enlistment under review, the Board determined the characterization was improper upon noting the government introduced into the discharge packet the results of three biochemical tests conducted on: 3 November 2008, which was coded CO (Command Directed or Competence for Duty), and on 24 November 2008 and 12 January 2009, which were coded RO (Rehabilitation Testing). These are limited use information as defined in AR 600-85. Use of this information mandates an honorable characterization of service. Accordingly, in a records review conducted at Arlington, VA on 27 September 2017, and by a 5-0 vote, the Board voted to change the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (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 June 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 May 2009 (2) Basis for Separation: The applicant was informed of the following reasons: He was absent without authority from his unit from 16 January 2009 to 21 January 2009, and 13 February 2009 to 4 May 2009. He tested positive for MDS/MDMA (Ecstasy) on 28 April 2008. He tested positive for Marijuana (THC) on four separate occasions on 3 November 2008, 24 November 2008, 9 December 2008, and 12 January 2009. He was convicted by civil court for interfering with a police officer on 21 January 2009. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 19 May 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 June 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 May 2004 / 5 years, 5 months (The applicant extended his 3-year enlistment to an additional 29 months on 30 April 2007. ETS date: 18 October 2009) b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 4 years, 10 months, 2 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (1 February 2005 to 14 January 2006) f. Awards and Decorations: ARCOM; AGCM; NDSM; ICM-CS; GWOTSM; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for the command being notified of the positive urinalysis which the applicant provided on 3 November 2008, as part of a command directed (CO) test; having a substandard performance; the command being notified of the positive urinalysis which the applicant provided on 24 November 2008, as part of his rehabilitation (RO) test, a third positive urinalysis; and the command being notified of the positive urinalysis which the applicant provided on 9 December 2008, as part of an inspection, random (IR) test, a fourth positive urinalysis. Electronic copy of the DD Form 2624, dated 8 May 2008, shows the applicant tested positive for MDA/MDMA during an Inspection, Random (IR) urinalysis testing conducted on 28 April 2008. FG Article 15, dated 11 June 2008, for wrongfully using MDS/MDMA (Ecstasy) between 26 April 2008 and 28 April 2008. The punishment consisted of a reduction to E-3, forfeiture of $894 pay per month for two months (suspended), and 45 days of extra duty and restriction. Electronic copy of the DD Form 2624, dated 14 November 2008, shows the applicant tested positive for THC (Marijuana) during a Command Directed/Competency for Duty/Fitness for Duty (CO) urinalysis testing conducted on 3 November 2008. (Note: CO is protected by limited use policy.) Electronic copy of the DD Form 2624, dated 4 December 2008, shows the applicant tested positive for THC (Marijuana) during a Rehabilitation Testing (RO) urinalysis conducted on 24 November 2008. (Note: RO is protected by limited use policy.) Memorandum, dated 5 December 2008, rendered by the clinical director, ASAP, indicates the applicant attended an initial ASAP screening; that the commander was notified of the enrollment in ASAP including the dates of training and appointments; that the command reported the applicant had a second positive urinalysis on 3 November 2008; and determinations that the applicant was an unsatisfactory participant in the rehabilitation treatment and that he meets the criteria of a Chapter 9, AR 635-200 action. Electronic copy of the DD Form 2624, dated 15 December 2008, shows the applicant tested positive for THC (Marijuana) during an Inspection, Random (IR) urinalysis testing conducted on 9 December 2008. FG Article 15, dated 15 January 2009, for wrongfully using Marijuana (THC) between 3 October 2008 and 3 November 2008. The punishment consisted of a reduction to E-1, forfeiture of $700 pay per month for two months, and 45 days of extra duty and restriction. Electronic copy of the DD Form 2624, dated 21 January 2009, shows the applicant tested positive for THC (Marijuana) during a Rehabilitation Testing (RO) urinalysis conducted on 12 January 2009. (Note: RO is protected by limited use policy.) MP Report, dated 22 January 2009, with a civilian police report, indicate the applicant was the subject of an investigation for interfering with a police officer (off-post). According to the unit commander's report/forwarding memorandum, a civil conviction on 22 January 2009, for interfering with a police officer (violation of Lawton City Code 16-605). The punishment consisted of $525 fine and 10 days confinement in City jail. Six DA Forms 4187 (Personnel Action) show the following statuses: Present for Duty (PDY) to AWOL, effective 16 January 2009 Absent Without Leave (AWOL) to Confinement, effective 21 January 2009 Confinement to PDY, effective 29 January 2009 Present for Duty to AWOL, effective 13 February 2009 Absent Without Leave to Dropped from Rolls (DFR), effective 15 March 2009 Dropped from Rolls to PDY, effective 4 May 2009 i. Lost Time / Mode of Return: 95 days (AWOL: 16 January 2009 to 29 January 2009, for 14 days, and 13 February 2009 to 4 May 2009, for 81 days) / j. Diagnosed PTSD / TBI / Behavioral Health: (Note, the following medical records indicate that they were initiated during his previous separation proceedings in 2008, which was disapproved and the applicant was retained on active duty.) Report of Medical History, dated 3 June 2008, indicates the applicant and the examiner noted behavioral health issues. Report of Mental Status Evaluation, dated 27 June 2008, psychiatrically cleared the applicant for any administrative (judicial) action deemed appropriate by his command. The report also commented that the applicant had residual symptoms from his deployment experience and loss of his mother, and that he was scheduled for an intake at the community mental health services and that treatment may be recommended. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 16 June 2016, with self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 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, and the issues and document submitted with his application were carefully reviewed. The record confirms the government introduced into the discharge packet results of three separate urinalyses: a. A command directed competence for duty (i.e., fitness for duty) biochemical test as reported on an electronic copy of DD Form 2624, reflects that the applicant tested positive for marijuana on 3 November 2008, as a result of a command directed urinalysis. On 15 January 2009, the applicant accepted non-judicial punishment for wrongfully using marijuana (THC) based on that urinalysis. His punishment for this offense was a reduction to E-1, forfeiture of $700 pay per month for two months, and 45 days of extra duty and restriction. If the test basis for the urinalysis was CO, as stated on the electronic copy of DD Form 2624, then the Article 15 was improper; however, there is no record to indicate that the command recognized that the "Command Directed" urinalysis could not be used as basis for the Article 15. b. A second electronic copy of DD Form 2624 contained in the record also shows the applicant tested positive for marijuana on 24 November 2008, as a result of a rehabilitation testing. The test bases for the aforementioned urinalyses as CO and RO, as stated on the electronic copies of DD Forms 2624, provide no indications that the command believed the urinalyses were improperly coded "CO" and RO," respectively. Although there are no CID reports, two separate counseling statements reflect that the applicant was counseled due to the command being notified of the positive urinalysis which the applicant provided on 3 November 2008, as part of a command directed (CO) test, and the second counseling was due to the command being notified of the positive urinalysis which the applicant provided on 24 November 2008, as part of his rehabilitation (RO) testing. Thus both provided the reasons the urinalyses were authorized. c. Additionally, the record further shows a third urinalysis conducted for rehabilitation testing, which also tested positive for marijuana. Again, the test basis of an RO, as stated on the electronic copy of DD Forms 2624, provides no indication that the command believed the urinalysis was improperly coded "RO." For this test, there was no CID report or counseling statement that sheds light on the reason the urinalysis was authorized. On the bases that the government introduced the results of a command directed urinalysis and two separate rehabilitation testing urinalyses into the discharge process, which are limited use information as defined in AR 600-85, the use of these information mandate award of an honorable discharge. However, the questions whether the urinalyses were properly coded are questions of fact for the Army Discharge Review Board to determine, given the contrary conclusions that could be drawn by the command's treating of each urinalyses as though they were not limited use evidence. The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalyses were improperly coded. Further, although the applicant did not raise any behavioral health issues, a careful review of his record indicates the applicant's behavioral health issues symptoms existed. 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. 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: After carefully examining the applicant's record of service during the period of enlistment under review, the Board determined the characterization was improper upon noting the government introduced into the discharge packet the results of three biochemical tests conducted on: 3 November 2008, which was coded CO (Command Directed or Competence for Duty), and on 24 November 2008 and 12 January 2009, which were coded RO (Rehabilitation Testing). These are limited use information as defined in AR 600-85. Use of these information mandate an honorable characterization of service. Accordingly, in a records review conducted at Arlington, VA on 27 September 2017, and by a 5-0 vote, the Board voted to change the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 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. Change SPD/RE Code to: No Change f. Restore (Restoration of) 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 AR20160013924 4