1. Applicant's Name: a. Application Date: 3 October 2016 b. Date Received: 6 October 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 unjust because the investigation into the allegations that led to his discharge was conducted without valid evidence. His Sixth Amendment rights, "the right to confront the accuser," was not exercised. Although he did not plead guilty, he was determined guilty prior to being questioned, and the questioning conducted by his superiors was intimidating and manipulative. Following his Article 15 punishment, the environment created by his superiors was stressful and humiliating. His superiors' demeanor towards him was more of a personal nature, rather than of a professional nature. His commitment to serving his country and community have been difficult because of his current discharge. Per the Board's Medical Officer, based on the information available for review at the time including the applicant's case file, AHLTA and JLV. AHLTA indicates applicant was diagnosed with mild TBI. He was gunner in MRAP in 2009 when an Armor Piercing IED exploded on his side of a vehicle. He reported brief loss of consciousness, dizziness, ringing in his ears, headache x 7 days. After returning home from deployment, he presented to a TBI clinic in 2010 with complaints of headache, insomnia and visual changes. He was diagnosed with mTBI. Review of the VA notes indicate that the applicant screened positive for both TBI and PTSD with the VA, but has not responded to any of their outreach calls. Based on the available information, the applicant has a mitigating Behavioral Health disorder for the misconduct leading to his discharge from the Army. As TBI is associated with poor judgment and the use of substances to self-medicate symptoms, there is a nexus between his TBI and the offense of smoking spice. In a records review conducted at Arlington, VA on 8 December 2017, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD and in-service TBI diagnosis) and as a result it is inequitable. 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), the separation code to JKN, and the reentry code to RE-3. (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: 2 February 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 January 2011 (2) Basis for Separation: On 6 November 2010, the applicant wrongfully violated a lawful general regulation, to wit: Paragraph 4b, III Corps Command Policy SJA-03, by wrongfully smoking Spice. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Waived, 5 January 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 14 January 2011 / General (Under Honorable Conditions) (Note that the separation authority approved separation under the provisions of AR 635-200, paragraph 14-12c, commission of a serious offense.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 October 2007 / 5 years (the applicant extended his enlistment an additional year on 3 March 2008) b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-3 / 31B10, Military Police / 3 years, 3 months, 15 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (2 February 2009 to 27 January 2010) f. Awards and Decorations: AGCM; NDSM; ICM-CS; GWOTSM; ASR; OSR; CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 24 November 2010, for violating a lawful general regulation by wrongfully smoking spice on 6 November 2010. The punishment consisted of a reduction to E-1, forfeiture of $723 pay per month for two months, and 45 days of extra duty and restriction. Report of Mental Status Evaluation, dated 2 December 2010, indicates the applicant with an "Axis I: Insomnia by History 307.42, Occupational Problems V62.29" diagnosis was cleared to participate in any administrative action deemed appropriate by his command. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 3 October 2016. 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(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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's available record of service and the issues submitted with his application were carefully reviewed. The record further 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. By the incident of misconduct, the applicant knowingly risked a military career and diminished the quality of his service. 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's contentions that the discharge was unjust were carefully considered. 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 his issues. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. Further, the rationale the applicant provided as the basis for what he believes was an unjust discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. The applicant contends questioning conducted by his superiors were intimidating and manipulative, and following his Article 15 punishment, the environment created by by members of his chain of command was stressful and humiliating. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. The applicant contends his commitment to serving his country and community have been difficult because of his current discharge, perhaps an indication that an upgrade would allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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 8 December 2017, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD and in-service TBI diagnosis) and as a result it is inequitable. 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), the separation code to JKN, and the reentry code to RE-3. 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 / Change to RE code to 3 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 AR20160017633 1