1. Applicant's Name: a. Application Date: 19 December 2016 b. Date Received: 22 December 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant's discharge was both equitable and improper due to legal issues stemming from his undiagnosed TBI and PTSD which have contributed to his minor misconduct. The counsel referenced the Secretary of Defense Chuck Hagel memorandum for liberal consideration. Although the applicant admitted to taking Valium without a prescription to treat an insomnia after a nine-day battle in Afghanistan, he was not accused of any long-term misconduct in his two years of service or found in possession of an unauthorized substance, and there was no positive urinalysis. His heroic service in support of OEF and fighting heroically in the deadliest battle of the 101st Airborne Division completely eclipse taking the medication to treat the debilitating effects of his combat related medical conditions. Methods used resulting in his confession violated his 4th and 5th Amendment rights, and the punishment violated his 8th Amendment rights. Years of counseling and supporting documentary evidence of his performance were not maintained which deprived him of his 5th Amendment right to due process; however, his record detailing the isolated incident of misconduct were disclosed upon request. His 8th Amendment to be free from cruel and unusual punishment was violated when a lifetime of benefits, the full range of benefits a combat wounded veteran deserves, were taken from him over the alleged conduct, despite a history of meritorious service and mental health conditions. His reported medical conditions of being mentally and physically disabled from the effects of PTSD, TBI, and knee and back injuries were disregarded. He was denied both treatment and an MEB; thereby, he was wrongfully discharged. 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 diagnoses include Adjustment DO, Benzodiazepine Abuse. AHLTA indicates applicant was diagnosed with Adjustment DO and Benzodiazepine Abuse. VA record indicates applicant is 70%SC for PTSD and 30% SC for TBI. Based on the available information, the applicant has a BH disorder which mitigates some of his misconduct. As PTSD and TBI are associated with the use of illicit drugs to self-medicate symptoms, there is a nexus between his PTSD/TBI and his wrongful use of Valium. Neither PTSD nor TBI is mitigating for the wrongful distribution of a controlled substance. In a records review conducted at Arlington, VA on 1 December 2017, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. post- service diagnoses of PTSD and TBI) 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: 27 February 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 January 2012 (2) Basis for Separation: The applicant wrongfully used and distributed valium between 1 April 2011 and 30 April 2011, while deployed in Afghanistan. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 25 January 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 January 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 August 2009 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 6 months, 25 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (3 May 2010 to 4 May 2011) f. Awards and Decorations: ARCOM; NDSM; ACM-CS; GWOTSM; ASR; NATO MDL; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Investigation Report, dated September 2011, indicates the applicant was the subject of an investigation for wrongful use, possession, introduction, and distribution of a controlled substance. FG Article 15, dated 14 October 2011, for wrongfully using and distributing valium, a schedule IV controlled substance between 1 April 2011 and 30 April 2011. The punishment consisted of a reduction to E-1, forfeiture of $733 pay per month for two months, and 45 days of extra duty and restriction. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 23 May 2011, indicates the applicant noted medical issues from IED blast, and behavioral health issues. Report of Medical Examination, dated 24 May 2011, reflects that the examiner noted possible "TBI, depression/PTSD." Report of Mental Status Evaluation, dated 7 November 2011, reflects a diagnosis of "AXIS I" as an "Adjustment Disorder." Applicant's documentary evidence: VA decision letter, dated 30 April 2014, reflects the applicant was assigned 70 percent for PTSD and 30 percent for medical conditions associated with TBI. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 19 December 2016, with counsel-authored brief and applicant-authored statement; DD Form 214; articles entitled "No Greater Love"; VA decision letter, dated 30 April 2014; Report of Medical Examination, dated 24 May 2011; Report of Medical History, dated 23 May 2011; Diagnosis of Brain Concussion sheet; Patient Lab Inquiry; two Rights Warning Procedure/Waiver Certificates with Sworn Statements, dated 18 April 2011 and 20 April 2011; memorandum for record (MFR), dated 19 May 2011; supporting statement on an MFR, dated 11 November 2016; seven additional supporting statements, dated 6x2, 9, and 12 December 2016, and 29x2 and 30 November 2011; picture depicting five Soldiers; and Appointment of Individual as Claimant's Representative. Additional evidence: counsel-authored statement, dated 13 June 2017, which referenced GAO report that was not attached. 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. 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. 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 and to change the narrative reason for his discharge. The applicant's available record of service, and 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 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 marred the quality of his service that ultimately caused his discharge from the Army. The applicant contends the discharge was unjust because of impropriety and inequitable bases, such as the applicant's 4th, 5th, and 8th Amendments were violated, and that he received no treatment for his medical condition or referred to an MEB. 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 sufficient 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 sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. Regarding the applicant's contentions that he should have been medically evaluated by an MEB and medically discharged; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant referred to the incident that caused his discharge as an isolated incident. 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 subsequent diagnoses of PTSD and TBI, 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 and traumatic brain injury 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 the incidents of misconduct, the Board can find that his complete period of service was not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. 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 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 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 1 December 2017, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD and TBI) 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: JKN / RE-3 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 AR20170000952 1