1. Applicant's Name: a. Application Date: 14 September 2016 b. Date Received: 16 September 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, the separation process was handled with improper procedures under the UCMJ. He states, the evidence he provides with his application, should be more than enough reasons to believe his separation was manipulated, handled improperly and with neglect. He states, on 23 June 2015, he wrongfully used an illegal substance and as a result he received an Article 15. He understood that this was wrong and was willing to accept any reasonable punishment. At the time he had tested positive for hydrocodone, he had already been command referred and enrolled into ASAP. He tried to explain that this was an accident and more than likely it was from the medication that his wife had bought for him on the German economy for his back pain. In no way was he trying to abuse drugs for personal satisfaction reasons. On 29 November 2015, he was involved in an incident where a lady stated that the applicant had "hit" her in the face. He stated, if they are going to use a toxicology report against him that it would be considered "limited use evidence," due to the fact that he was still enrolled in ASAP. He stated the only charges that could be held against him under the UCMJ, was the assault charge. The blatant changes to his mental status evaluation where done in order for him to be deemed fit to be separated from the Army without having the proper treatment before his discharge. His original mental status evaluation clearly stated that "further evaluation would be required," which prevented him from being cleared to separate. Changing his mental status evaluation was clearly an act of improper practice under the UCMJ. He states that after he noticed that his life was dramatically going downhill, with no apparent help from the people who could have made a difference, he went into a state of depression. He had resentment and he did not feel comfortable in an organization that he had deployed with and was willing to die for. He brought his concerns about the possible outcomes and stated that he had deployed to Afghanistan without a CENTCOM waiver. He was not medically approved by a doctor to deploy, but he still managed to serve nine months in Afghanistan. Although he voiced his concerns to his command team while separation was still being processed, he still received a general discharge. He utilized the JAG and number of other resources to have his case investigated, but no one agreed to help him. When his separation packet was complete, his commander asked the applicant if he understood what was going on and she recommended the applicant for an honorable discharge. He states the reason for her recommendation was the fact that the series of misfortunate events that occurred did not define his character or overshadow the respect he had earned from his subordinates, peers, and superiors. He was asked if he wanted to submit mitigating matters in his defense. He submitted a memorandum that included limited use evidence that reflected at the time of his misconduct, he had been enrolled in ASAP and he requested to have the opportunity to heal. Field Manual 27-14, states that the limited use policy is "applied automatically and cannot be withdrawn." He states that his situation was met with a negative intent. His psychologist submitted a memorandum stating that an honorable discharge under Chapter 9 would be more suitable because the applicant was considered to be a relapse and because he had no disciplinary actions before 23 July 2015. Everything that had happened to the applicant was either because of an illegal substance or alcohol. He states, in February 2016, he asked his commander if he could exercise the open door policy with the brigade commander in order to discuss the decision on his discharge. He was notified that he had an appointment with the brigade commander during the same morning he was also notified that he had an Article 15 reading for an incident that happened three months earlier. He believes his battalion commander caused this, because he knew the applicant had an appointment with the brigade commander. When he met with the brigade commander, his commander stated that he could not discuss the Article 15 that had taken place the day prior. His brigade commander told the applicant that he had viewed the "limited use evidence," document "but he did not want to use it to separate him under a chapter 9 discharge." On 29 February 2016, he reached a final personal evaluation that people were receiving different punishments by his battalion commander based on their complexion of their skin. The applicant states that he did not want to make poor irrational statements, so he just filed a formal Equal Opportunity (EO) complaint to see if it were true. Later that day, he received the final reading of the Article 15. He believes his appeal clearly reflects he was able to prove his innocence in the alleged assault. He believes the rest of the charges should have been dismissed because it was collateral to the false allegations; and, there was no toxicology report stating that he was intoxicated or impaired by drugs or alcohol. Due to the lack of evidence in the investigation, the battalion commander called for a recess in the Article 15 reading. During the final reading of the Article15, on 1 March 2016, his battalion commander introduced new evidence that was not initially provided when the applicant had sought legal advice. The applicant informed his battalion commander that this was a direct violation of the UCMJ Part V and Manuals for Court-Martial. His commander ignored this and imposed the maximum punishment. The applicant immediately filed for an appeal to his brigade commander, which resulted in the applicant retaining his rank. Later that day, the toxicology report was provided to the applicant. He accepted the report, but he had his supervisor sign that he witnessed the applicant receive the document after the punishment was imposed. The applicant provides a copy of his EO complaint that he filed against his battalion command for improper and unjust practice of the UCMJ. He provides a series of email conversations between the applicant and SFC R, wherein he requested the results of the EO investigation, after his discharge. He concludes that he was denied the right to have a copy because of the findings of the investigation or because he had already been discharged. He states he does not ask for sympathy for his decisions, but rather empathy from those who understand that everyone endures a hardship. His main concern during his remaining time in the military were the many shortcomings and he only wanted to be treated with respect and justice. He requests that the Board correct any faults in his case or provide the reasoning why he was dealt with improper judgement and a neglectful mindset of other individuals. He desires to start over from a positive aspect for his family and reach the potential that he knows he is capable of. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had a medical or behavioral health condition that was mitigating for the reasons leading to an early separation. In summary, SM's diagnosis of Depression can be associated with the use of substances for self-medication and risk-taking behaviors; however, his behavioral health condition is not mitigating for disorderly conduct, assault, or resisting apprehension. In a records review conducted at Arlington, VA on 13 December 2017, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, and in-service and post-service diagnoses of OBH. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. 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 (Drug Abuse) / AR 635- 200 / Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 16 March 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 December 2015 (2) Basis for Separation: The applicant was informed of the following reasons: Between on or about 2 June 2015 and on or about 23 June 2015, he wrongfully used Marijuana (THC), a Schedule I controlled substance. (3) Recommended Characterization: Honorable (4) Legal Consultation Date: 16 December 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 January 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 April 2012 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68R10, Veterinary Food Inspector / 3 years, 10 months, 14 days / Based on the applicant's service record and his enlistment document, Block 12a (months), should reflect a "04." d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (22 October 2013 - 1 August 2014) f. Awards and Decorations: ACM-CS, ARCOM, AGCM, NDSM GWOTSM, ASR, OSR-2, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Commander's Report, dated 23 December 2015, reflects the applicant received a FG Article 15, dated 17 September 2015, for violation 112a, UCMJ. The punishment consisted of a reduction to E-2; forfeiture of $867 pay for two months (suspended); and, extra duty and restriction for 45 days. The applicant provides the following documents, but they are not included in the applicant's service record and were not part of the applicant's separation packet: Electronic Copy of DD Form 2624, dated 29 July 2015, reflects the applicant tested positive for THC 77 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 23 June 2015. Chronological Record of Medical Care, dated 3 September 2015, reflects the applicant was diagnosed with Alcohol Dependence. FG Article 15, dated 15 September 2015, for wrongfully using marijuana (between 2 and 23 June 2015). The punishment consisted of a reduction to E-2; forfeiture of $867 pay per month for two months (suspended); extra duty and restriction for 45 days; and, an oral reprimand. Electronic Copy of DD Form 2624, dated 22 October 2015, reflects the applicant tested positive for HYCOD 1378,>LOL HYMOR294, during a Rehabilitation Testing (RO) urinalysis testing, conducted on 29 September 2015. FG Article 15, dated 25 February 2016, for resist being apprehended by an armed forces policeman; wrongfully using provoking words towards SSG R; unlawfully strike H.T. in the face with closed hand; and drunk and disorderly (28 November 2015). The record did not reflect any imposed punishment. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of a Chronological Record of Medical Care, dated 24 August 2015, which reflects the applicant was diagnosed with: Sleep Disorders Organic Persistent Insomnia Attention Deficit-Hyperactivity Disorder Adjustment Disorder with Anxiety The applicant provided a copy of his Report of Mental Status Evaluation, dated 27 August 2015, which reflects the applicant received a command-directed behavioral health evaluation. The applicant could understand the difference between right and wrong and could participate in the proceedings. Further assessment was needed to determine fitness for duty. The applicant was diagnosed with an Attention-Deficit Hyperactivity Disorder (Axis I). The applicant provided a copy of his Report of Mental Status Evaluation, dated 17 November 2015, which reflects the applicant was cleared for administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with Alcohol Dependence. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 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. National Defense Authorization Act 2017 provided specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD; TBI; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. Conditions documented in the service 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 a mental health condition, including PTSD; TBI; or sexual assault/harassment 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 characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors 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. Caution shall be exercised 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 applicant, as a 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 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 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 contends his chain of command and other agencies would not help him. However, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. The applicant contends he was improperly charged with offenses under Article 15 UCMJ, and that he should not have been allowed to deploy. However, the applicant's issues do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends his commander considered limited use information during the separation process and that his behavioral health evaluation was improperly changed. However, 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 applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. The character of the applicant's discharge is commensurate with his overall service record. Further, the applicant's original behavioral health evaluation was command-directed and not for the purposes of his separation proceedings. The later, behavioral health evaluation cleared the applicant for any administrative actions deemed appropriate by his command. The applicant's service record contains documentation that supports a diagnosis of in service depression; however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 17 November 2015, the applicant underwent a mental status evaluation, which indicates he was mentally responsible and was able to recognize right from wrong. It appears, the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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 13 December 2017, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, and in-service and post-service diagnoses of OBH. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. 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 AR20170000465 2