1. Applicant's Name: a. Application Date: 20 February 2017 b. Date Received: 9 March 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, he has spent much time overcoming his problem and turning his life around. He was young and dumb at the time of his misconduct. He was wrongfully and illegally separated from the Army. His UCMJ action was executed for a urinalysis that was taken, after he had admitted to his first sergeant that he was using marijuana again. He was punished twice for the same offense. He self-medicated for PTSD. He was unable to be seen by the substance abuse program personnel due to his deployment dates. He was not given the opportunity to rehabilitate, nor was he given proper sentencing. He has not used marijuana or any other drug for approximately four years now. He wants another chance to get it right and serve once again. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had a history of ASAP enrollment as of 10 February 2010. which was after his misconduct for marijuana use had begun. His Separation Medical Exam resulted in a profile of 111111 on 13 July 2010. His Separation Mental Status Exam (MSE) of 25 June 2010 found no psychiatric conditions, found he met Army retention standards, and concluded he did not meet criteria for a PTSD or TBI diagnosis. He was cleared for administrative discharge. He provided a letter from his mother and stepfather attesting he has PTSD, but that is inconsistent with the Psychiatrist's opinion in his Separation MSE. His AHLTA diagnoses include Adjustment Disorder with Anxiety and Depressed Mood (1 visit, Sept 2010) and Suicide Risk (1 Visit, Sept 2010). He also had an ASAP referral (2x), including one in March 2010. His suicidal ideation, which occurred in the context of being chaptered out, did lead to hospitalization. During his ASAP evaluation in March 2010, he stated he smoked marijuana "for fun and to alleviate some pain." In September 2010, he reported a history of hard partying and also said he did not intend to stop smoking marijuana. In the JLV he has a VA SC percentage of 70%. His VA problem list includes diagnoses of Homelessness, chronic PTSD, and recurrent Major Depressive Disorder. Even though the actual facts of this case are very weak in their support for mitigation, Liberal Consideration would seem to call for mitigation in this case. It should be noted he already has a General Discharge. PTSD began being used as a diagnosis by the VA as early as November 2010 with limited justification in notes for the diagnosis. In a personal appearance hearing conducted at Arlington, VA on 9 April 2018, 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, homelessness, post-service accomplishments, the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of PTSD and OBH) 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: 22 September 2010 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 8 July 2010 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; wrongfully used marijuana x2 between (15 December 2009 and 14 January 2010) and between (15 January 2010 and 16 February 2010). (3) Recommended Characterization: General (Under Honorable Conditions) The intermediate commander recommended that the separation be approved, but that the execution of the approved separation be suspended for a period not to exceed 12 months. (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 24 July 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 August 2007 / 4 years b. Age at Enlistment / Education / GT Score: 18 years / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25U10, Signal Support System Specialist / 3 years, 1 month d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA/ /Iraq x2, 14 June 2008 to 14 February 2009 and 10 March 2010 to 11 August 2010 f. Awards and Decorations: AAM, NDSM, ICM-CS, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Positive urinalysis test coded IU (Inspection Unit), dated 14 January 2010, for THC. Positive urinalysis test coded PO (Probable Cause), dated 16 February 2010, for THC. The applicant received a negative counseling statement, dated 10 May 2010, for wrongful use and possession of a controlled substance. Report of Mental Status Evaluation, dated 25 June 2010, relates that the applicant was mentally responsible for his behavior, could distinguish right from wrong and possessed sufficient mental capacity to participate in any administrative proceedings. He did not meet criteria for PTSD/TBI diagnosis. He was cleared for any administrative actions from a behavioral health perspective deemed appropriate by command. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application (seven pages); DD Form 214; letter, Chief, Congressional Liaison and Inquiries with associated documents (13 pages); letter, Chief, Congressional Liaison and Inquiries; applicant letter (four pages); Chapter 14 separation documents (three pages); applicant's case for appeal document (eight pages); five support statements; timeline 2010; and a letter, from applicant's parents. 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. 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 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. 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 14-12c(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 the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier. 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 diminished the quality of his service below that meriting an honorable discharge at the time of separation. 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 requests a change to the narrative reason for separation. 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, misconduct (drug abuse). The regulation further stipulates that no deviation is authorized. The applicant seeks relief contending, he spent much time overcoming his problem and turning his life around; and he has not used marijuana or any other drug for approximately four years now. The applicant is to be commended for his efforts. However, these contentions are not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant further contends, he was young and dumb at the time of his misconduct. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The applicant also contends, he was wrongfully and illegally separated from the Army. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was wrongfully and illegally separated from the Army. The applicant additionally contends, his UCMJ action was executed for a urinalysis that was taken, after he had admitted to his first sergeant that he was using marijuana again; and he was punished twice for the same offense. 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 bears the burden of presenting substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he self-referred for drug use. Furthermore, the applicant contends, he self-medicated for PTSD. The service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. Additionally, 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 before committing the misconduct which led to the separation action under review. Moreover, the applicant contends, he was unable to be seen by substance abuse program due to deployment dates; he was not given the opportunity to rehabilitate, nor was he given proper sentencing. AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 7-3 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. The third party statements provided with the application speak highly of the applicant. However, some of the persons providing the character reference statements were in and some were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The applicant wants another chance to get it right and serve once again. Soldiers being processed for separation are assigned reentry codes based on their reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None submitted with the hearing data sheet. b. The applicant presented the following additional contention(s): None were annotated on the hearing data sheet c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 9 April 2018, 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, homelessness, post- service accomplishments, the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of PTSD and OBH) 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. 11. 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 Code to: Change SPD Code to JKN f. Change RE Code to: Change RE Code to 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 AR20170003486 6