1. Applicant's Name: a. Application Date: 20 January 2017 b. Date Received: 23 January 2017 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 is trying to be productive. He has married and will start school. In a records review conducted at Arlington, VA on 2 May 2018, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of two biochemical tests which were coded RO (Rehabilitation Testing) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. Further, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, 27, and 28, contain erroneous entries. In view of the erroneous entries, the Board directed the following administrative corrections and reissue of the applicant's DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, b. block 26, separation code changed to JKQ, c. block 27, reentry code changed to 3, and d. block 28, narrative reason for separation changed to Misconduct (Serious Offense). (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct / AR 635-200, Paragraph 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 29 December 2004 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 December 2004 (2) Basis for Separation: The applicant was informed of the following reasons: On 29 September 2004, he failed to go to his appointed place of duty at the prescribed time. On 7 August and 31 September 2004, he wrongfully used methylenedioxymethamphetamine. On 7 August 2004 and 7 September 2004, he wrongfully used marijuana. On 31 July 2004 and 31 August 2004, he wrongfully used marijuana. On 27 June 2004 and 27 July 2004 he wrongfully used marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 December 2004 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 December 2004 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 January 2001 / 4 years b. Age at Enlistment / Education / GT Score: 19 / GED / 103 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25L10, AN/TSQ-73 ADA Command and Control Systems Operator-Maintainer /3 years, 10 months, 1 day d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (7 April 2003 to 6 April 2004) f. Awards and Decorations: NDSM; GWOTEM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Summarized Record of Proceedings under Article 15, UCMJ, dated 30 October 2001, for failing to go to his appointed place of duty at the prescribed time on two separate occasions on 12 October 2001. The punishment consisted of 14 days of extra duty. CG Article 15, dated 28 March 2003, for disobeying an NCO on two separate occasions on 6 February 2003, and being disrespectful in language and deportment towards an NCO on 6 February 2003. The punishment consisted of a reduction to E-3, 3 days of extra duty, and 14 days of restriction (suspended). FG Article 15, dated 28 January 2004, for wrongfully possessing alcohol in violation of a lawful general order while in Iraq on 30 November 2003, and making a false official statement in an affidavit on 30 November 2003. The punishment consisted of a reduction of E-1, forfeiture of $575 pay per month for two months, and 45 days of extra duty. Negative counseling statements for failing to be at his appointed place of duty at the prescribed time on numerous occasions; testing positive for substance abuse; disobeying a lawful order; showing up in substandard uniform; failing to follow the uniform standards. Electronic copy of the DD Form 2624, dated 28 June 2004, shows the applicant tested positive for Marijuana during an Inspection, Unit (IU) urinalysis testing conducted on 17 June 2004. FG Article 15, dated 12 August 2004, for wrongfully using marijuana between 17 May 2004 and 17 June 2004. The punishment consisted of forfeiture of $596 pay per month for two months, and 45 days of extra duty. Electronic copy of the DD Form 2624, dated 2 August 2004, shows the applicant tested positive for Marijuana during an Inspection, Random (IR) urinalysis testing conducted on 27 July 2004. Electronic copy of the DD Form 2624, dated 7 September 2004, shows the applicant tested positive for Marijuana during a Rehabilitation Testing (RO) urinalysis testing conducted on 31 August 2004 (pages 36-38 of separation file). Electronic copy of the DD Form 2624, dated 16 September 2004, shows the applicant tested positive for Methamphetamine and Marijuana during an Inspection, Unit (IU) urinalysis testing conducted on 7 September 2004. Record of Trial by Summary Court-Martial with its associated charge sheet indicates that on 16 November 2004, the applicant was found guilty of Charge I: violation of Article 86, UCMJ, for failing to be at his appointed place of duty at the prescribed time, 0630 formation, and Charge II: violating Article 112a, UCMJ, a specification of wrongfully using methamphetamine and two specifications of wrongfully using marijuana. The sentence consisted of confinement for 30 days and forfeiture of $795 pay per month for one month. Report of Mental Status Evaluation, dated 5 August 2004, psychiatrically cleared the applicant for any action deemed appropriate by his command. i. Lost Time / Mode of Return: 39 days (AWOL: 5 November 2004 to 8 November 2004, for 4 days, and 15 November 2004 to 9 December 2004) j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 4 August 2004, indicates the applicant and examiner noted behavioral health issues and treatment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 20 January 2017. 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. 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 available record of service and the issues 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 record further indicates that the characterization of service appears to be improper. The record confirms the government introduced into the discharge packet the results of a biochemical tests conducted on 31 August 2004, which was coded RO (Rehabilitation) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. The service record further reflects that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, paragraph 14- 12c(2), block 26 separation code as "JKK," block 27 reentry code as "4," and block 28, narrative reason for separation as "Misconduct." Therefore and as approved by the separation authority, the following administrative corrections are recommended: a. block 25, separation authority to AR 635-200, Chapter 14-12c; b. block 26, separation code to JKQ; c. block 27, reentry code to 3; and d. block 28, reason for separation to Misconduct (Serious Offense). 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 application contends he is trying to be productive and that he would be starting school, perhaps a desire for educational benefits. However, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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: In a records review conducted at Arlington, VA on 2 May 2018, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of two biochemical tests which were coded RO (Rehabilitation Testing) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. Further, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, 27, and 28, contain erroneous entries. In view of the erroneous entries, the Board directed the following administrative corrections and reissue of the applicant's DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, b. block 26, separation code changed to JKQ, c. block 27, reentry code changed to 3, and d. block 28, narrative reason for separation changed to Misconduct (Serious Offense). 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Serious Offense) d. Change Authority to: AR 635-200, paragraph 14-12c e. Change SPD / RE Code to: JKQ / RE-3 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 AR20170001751 1