1. Applicant's Name: a. Application Date: 5 December 2016 b. Date Received: 2 February 2017 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 and its corresponding codes for his discharge. The counsel, on behalf of the applicant seeks relief contending, in pertinent part and in effect, as result of the applicant's service, he has struggled with Post Traumatic Stress Disorder with features of depressive disorder and insomnia, anxiety, depression, and sleep disorder, which heightened when he lost friends and family in combat. He served honorably for over three years and received numerous commendations, and served a 15-month combat tour in Iraq. He was diagnosed with PTSD by VA, and he is receiving treatment with disability compensation. An upgrade would allow him the benefits of the Post 9/11 GI Bill. A change to the reentry code would allow him to reenlist in the Army. The significant of his PTSD, and the causal connection between the PTSD and the improper use of dietary supplements, provide an equitable ground for an upgrade. (The counsel detailed the circumstances and events surrounding the basis for the applicant's discharge, his service, subsequent diagnoses of behavioral health issues, and his post-service conduct.) Per the Board's Medical Officer, based on the information available for review at the time, case files, AHLTA and JLV were reviewed. AHLTA notes indicate applicant was diagnosed with Anxiety Disorder NOS, Alcohol Abuse and Insomnia. Applicant first began seeing BH around the time of his misconduct (May 2008). His staff sergeant brought him to his first BH appointment and explained that the applicant needed to be seen because he was having problems sleeping and was drinking heavily in order to sleep. Applicant reported he felt like he was "going crazy". Stated his best friend was killed in combat and, shortly thereafter, his stepbrother (with whom he enlisted) was killed in Baghdad in July 07 at which time the applicant began having problems with insomnia. He reported his wife asked for a divorce during this time because he "had changed". States he ordered steroids off of the internet because he could score 270 on his APFT but could not keep up with road marches and he thought steroids would help. States he only injected them one time. He reported was drinking heavily (up to 30 beers or a fifth of liquor a night). Between 8 May 2008 and 27 Aug 2008, he had over 17 BH visits-he was seen by Psychiatry, Psychology, Social Work Services and ASAP. His sleep problems improved with medication. He reported PTSD symptoms while on active duty but did not meet full criteria and was diagnosed with Anxiety Disorder NOS instead. He screened positive for PTSD and TBI on his separation mental status evaluation. VA records indicate he is 90% SC, 70% of which is for PTSD. Based on the available documentation and in accordance with the Liberal Guidance policy, the applicant's does not have a mitigating BH disorder. While PTSD may mitigate the use of illicit substances as a means to self-medicate symptoms, it does not mitigate the wrongful possession of drug paraphernalia. In a records review conducted at Arlington, VA on 11 May 2018, and by a 3-2 vote, the Board, based on the applicant's length and quality of service, to include combat service, post-service accomplishments, and a post-service diagnosis of PTSD and behavioral health issues determined the narrative reason for the applicant's separation is now inequitable. Therefore, the board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the reentry code to RE-3 and the separation code to JKN. The board determined the characterization of service was proper and equitable and voted not to change it. (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: 4 September 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 July 2008 (2) Basis for Separation: On 9 May 2008, the applicant received a Field Grade Article 15 for wrongfully possessing drug paraphernalia. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 6 August 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 28 August 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 October 2005 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 19 / GED / 106 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 10 months, 15 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (5 February 2007 to 22 April 2008) f. Awards and Decorations: ARCOM; NDSM; ICM-CS; GWOTSM; OSR; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for being disrespectful towards a noncommissioned officer; missing a first call formation; and going out drinking without a plan. FG Article 15, dated 9 May 2008, for failing to obey a general order by wrongfully possessing drug paraphernalia on 10 February 2008. The punishment consisted of a reduction E-1, forfeiture of$673 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: Applicant's documentary evidence: VA Rating Decision letter, dated 13 September 2010, shows the applicant received an evaluation of PTSD with feature of depressive disorder and insomnia (claimed as PTSD, anxiety, depression and a sleep disorder). VA letter, dated 23 September 2010, shows a service-connected medical condition of PTSD with features of depressive disorder and insomnia claimed as PTSD, anxiety, depression and sleep disorder. VA letter, dated 28 June 2016, indicates the applicant was in treatment for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 5 December 2016, with counsel-authored brief; applicant's affidavit, dated 16 December 2016; a support affidavit; VA letter, dated 28 June 2016; last page of medical social worker statement, date 17 June 2016; page depicting Maximum Human Performance T-Bomb tablets; VA letter, dated 23 September 2010; VA Rating Decision letter, dated 15 September 2010; marriage certificate; Secretary of Defense Memorandum with attachments, dated 3 September 2014; letter, dated 25 April 2013; and Article 15, dated 9 May 2008. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant, states in effect, that the applicant is leading a productive life since his discharge. He completed first semester but dropped out after being denied his educational benefits, and sought full employment. He was employed as a car salesman for four months. Despite all the occurrence, he continues to try to better himself by pursuing higher education. 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 reentry code that corresponds with 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. The applicant contends the discharge was unjust because of the causal connection between the PTSD and the improper use of dietary supplements; there was no evidence establishing that the bag and pills confiscated (basis for discharge) from the applicant were anything other than what he claimed as OTC dietary supplements; he was not afforded the opportunity to submit to a drug test; and grounds of propriety because of error of fact, procedure and discretion occurred, and that error was prejudicial to the applicant during his discharge process. 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incident of misconduct, and his post-service accomplishments, 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's contentions regarding his behavioral health issues which involved being diagnosed and receiving treatment for PTSD, 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 reentry code that corresponds with the narrative 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. Further, regarding his request to change the reentry code that will provide him the opportunity to reenlist, Soldiers being processed for separation are assigned reentry codes based on their service records or the 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 applicant contends that an upgrade of his discharge would allow him to receive all his 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 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 May 2018, and by a 3-2 vote, the Board, based on the applicant's length and quality of service, to include combat service, post-service accomplishments, and a post-service diagnosis of PTSD and behavioral health issues, determined the narrative reason for the applicant's separation is now inequitable. Therefore, the board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the reentry code to RE-3 and the separation code to JKN. The board determined the characterization of service was proper and equitable and voted not to change it. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change 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 AR20170003895 1