1. Applicant's Name: a. Application Date: 22 February 2017 b. Date Received: 27 February 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 and to change the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, his discharge was inequitable because it was based on one isolated incident in 48 months of active duty and 42 months of reserve service with no other adverse actions. His chain of command failed to follow Army Regulations with the required time frame for processing and records review accuracy, and the guidance for characterizing his service. The inequity of his discharge shows there was no additional misconduct or disciplinary actions that occurred during his military service. The sole basis for the separation action was the one-time use of D-Amphetamine, a prescription drug commonly used for dieting. He received, accepted, and met all obligations of his FG Article punishment for the offense. Most of the separation documentation were not dated which questions the time line of the processing. Although the ERB missed key data, it was used. It did not show an accurate evaluation of his performance-such, as his one-year service in Iraq was missing. The commander's report was filled with incorrect data, misleading information, and contradiction. Specifically, when the commander recommended "retained in the United States Army" and the data on his citations or awards is incorrect as he received two AAMs. His discharge should have been processed under Chapter 14-12a or 12b for minor disciplinary infractions or incidents of other misconduct, and not drug abuse as relevant facts mitigate the nature of the offense. The governing regulation states that 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 14-12a or b, as appropriate. The guidance of AR 635-200, paragraph 3-5 e(3) was not adhered to; in that his performance of duty and conduct was not accurately evaluated and this discharge action was solely based on an isolated action. Additionally, paragraphs 3-7a(2)(a), (b), & (c) was not considered during characterizing his service due to the lack of the accurate evaluation of his military records. (The applicant cited several regulations that were not followed.) He asserts that he served faithfully and honorably, 12 months in Iraq and a total of 48 months on Active duty and 42 months as an Army Reserve Soldier. The isolated incident should not define his entire military service. The awards he received are evidence of the efforts and pride he took in serving his country. His contributions to the Army far outweigh the isolated incident that characterized his discharge. Additionally, his PTSD was not diagnosed until after his discharge. The offense occurred as a result of his service-connected PTSD. Per the Board's Medical Officer, based on the information available for review at the time, the applicant has included a VA disability rating decision of 29 December 2014 that continued a 70% rating for SC PTSD. He first obtained a PTSD rating on 28 July 2011, being rated at 70% at that time. In AHLTA, the applicant had diagnoses of Adjustment Disorders, Alcohol Abuse, Amphetamine Abuse, Anxiety, Anxiety Disorder NOS, Chronic Pain, Fatigue, Generalized Anxiety Disorder, Insomnia, Nicotine Dependence, Obesity Exogenous, Opioid Abuse, Overweight, Social Phobia, Substance Use Disorders, and Unspecified Drug Dependence. He did not have PTSD or TBI diagnosis in AHLTA. His mental health difficulty began to be treated in 2008. He was referred for substance abuse in April 2010 after a self-reporting heavy drinking. An ASAP provider diagnosed him with Alcohol Abuse on 26 April 2010. He did received treatment in ASAP. He had a chapter physical on 07 March 2011. On note on 09 March 2011 was for seeing him after he had an inpatient hospitalization for withdrawal symptoms from Vicodin. He also denied "having problems with generalized anxiety, OCD symptoms, panic attack or PTSD symptoms" at that time. As noted above, he is 70% VA SC connected for PTSD in the JLV, and with an overall VA SC rating in JLV of 80%. His VA Problem List Diagnoses include ADHD, chronic PTSD (2018), Chronical Viral Hepatitis C (2014, 2017), Cocaine Abuse (2017), Suicide Attempt (2017), Opioid Dependence (2014, 2015, 2017), Obesity, Tobacco Use, Drug Seeking Behavior (2014), PTSD (2014), Heroin Dependence (2014), and Sedative Abuse (2014). The VA showed a total of 20 admissions to its treatment facilities for many uses including substance use and PTSD. For service and VA he showed a total of 1422 outpatient encounters in the JLV system as of 30 May 2018. His first encounter where PTSD was used as the reason for visit was on 15 March 2012, with him claiming his anxiety was the product of his Iraq tour in 2009. He did admit to cannabis use in high school in this session. Further he had 2 underage drinking tickets. He also denied use of substances in this session, which is not consistent with the overall picture. He linked his PTSD to combat experiences (unspecified) in a note on 15 May 2012. Although he falls in a class of persons covered by the Liberal Guidance Policy, his drug use does appear to have preceded his enlistment and to have accelerated over the years. He already has a General Discharge. So, even if one mitigates his drug use, it does not mean that further upgrades in his discharge are warranted. In a records review conducted at Arlington, VA on 11 June 2018, and by a 4-1 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 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, paragraph 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 July 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: Undated memorandum (2) Basis for Separation: Between 8 October 2010 and 8 November 2010, the applicant wrongfully used D-Amphetamine. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 22 June 2011 (5) Administrative Separation Board: Waived on 22 June 2011 (6) Separation Decision Date / Characterization: In an undated memorandum / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 July 2007 / 3 years b. Age at Enlistment / Education / GT Score: 25 / GED / 90 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92S10, Shower/Laundry and Clothing Repair Specialist / 7 years, 6 months, 22 days d. Prior Service / Characterizations: USAR (6 January 2004 to 17 July 2007) / NA e. Overseas Service / Combat Service: SWA / Iraq (8 December 2008 to 26 November 2009) f. Awards and Decorations: AAM; NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statement for having a positive urinalysis for D-Amphetamine, Oxycodone and Oxymorphone; having prescription for only the Oxycodone and Oxymorphone; and illegally using controlled substance. FG Article 15, dated 24 January 2011, for wrongfully using Amphetamine on 12 November 2010. The punishment consisted of a reduction to E-3, forfeiture of $975 pay per month for two months, and 30 days of extra duty. Email correspondence, dated 22 June 2011, contains an electronic copy of the DD Form 2624, dated 14 June 2011, which reflects the applicant tested positive for D-Amphetamine during an IU (Inspection, Unit) urinalysis testing conducted on 31 May 2011. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: The applicant documentary evidence: VA Rating Decision, dated 29 December 2014, indicates the applicant received an evaluation of 70 percent for service-connected PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 22 February 2017, with self-authored continued statement; DD Form 214; discharge orders; Pre-Separation Counseling Checklist; and VA Rating Decision, dated 29 December 2014. 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 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incident of misconduct, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The applicant contends the incident that caused his discharge was the only one in his entire Army career. 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 numerous contentions that his discharge was inequitable because his command failed to follow several regulations during the process of his discharge, 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 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. The applicant's contentions regarding his behavioral health issues which involved his subsequent PTSD diagnosis, 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 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. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. 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 11 June 2018, and by a 4-1 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 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, paragraph 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, paragraph 14-12a e. Change SPD / RE Code to: JKN / 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 AR20170003741 1