1. Applicant's Name: a. Application Date: 6 March 2017 b. Date Received: 7 March 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, the discharge was improper because it is based upon errors of procedure that were prejudicial, based on recommendations from commanders in which they improperly introduced protected limited use evidence. The applicant was denied due process during the discharge process, when behavioral health personnel refused to perform a PTSD and mTBI screening on prior to administrative separation in violation of Army regulations and policy guidance. The discharge was also inequitable based on the totality of evidence relating to the applicant's capability to serve and quality of service, which mitigated the misconduct that caused the under other than honorable conditions characterization of service. The applicant's mental health conditions, including notable service-connected PTSD and major depressive disorder resulting from combat experiences, existed during service and were significant contributing factors that led to the misconduct underlying the discharge. The applicant's post-service conduct has been beneficial to the community and is more indicative of the applicant's overall honorable service than the misconduct attributable to PTSD while serving in the Army. Since the discharge from the Army and despite ongoing struggles with PTSD, the applicant has been an upstanding citizen with no criminal record and has not used any illegal drugs. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the applicant has multiple medical or behavioral health (BH) diagnoses. The SM was seen by BH in February 2012 for depression and post-traumatic stress symptoms. A Mental Status Evaluation dated 29 February 2012, indicated the SM had a diagnosis of an Adjustment Disorder with Depressed Mood and was psychiatrically cleared for administrative action. Post-service, the SM does not have a disability rating from the Veteran Affairs (VA) and there is no evidence the applicant has sought care. In summary, the SMs BH conditions can be partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 10 August 2018, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. in-service diagnosis of OBH and PTSD). Therefore, the board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions. However, 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. 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, 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 (Drug Abuse) / AR 635- 200, Paragraph 14-12c(2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 15 June 2012 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 27 April 2012 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he failed to obey a lawful general order by wrongfully possessing and using SPICE; he reported to formation with an unauthorized haircut; he failed to perform his duties on numerous occasions while on extra duty; he made a false official statement; and he wrongfully used cocaine. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 7 May 2012, the applicant consulted with legal counsel. (5) Administrative Separation Board: The applicant waived consideration of his case by an administrative separation board. (6) Separation Decision Date / Characterization: 8 June 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 July 2009 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 years / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 11 months, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan, 1 November 2010 to 20 October 2011 f. Awards and Decorations: AAM, NDSM, ACM-2CS, GWOTSM, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 10 July 2011, for having knowledge of a lawful order issued by COL B.P.A., an order which it was his duty to obey, did fail to obey the same by wrongfully possessing and using a substance used for the primary purpose of inducing excitement, intoxication, and / or stupefaction of the central nervous system (5 July 2011); Reduction to Private / E-1, forfeiture of $734 pay for two months and extra duty for 45 days. CG Article 15, dated 27 March 2012, for with intent to deceive, make to SSG X., an official statement, "no one else was involved in the car accident," or words to that effect, which statement was totally false (28 January 2012); extra duty and restriction for 7 days (suspended). FG Article 15, dated 7 May 2012, for wrongful use of cocaine between (10 February 2012 and 13 February 2012); the punishment for this Article 15 is not contained in the available record. The applicant received several negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 29 February 2012, relates the applicant had an Axis I diagnosis of adjustment disorder with depressed mood. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's letter; attorney's brief (43 pages); Exhibits A and B, Affidavit of X; Exhibit C, Affidavit of X., Ph.D.; Exhibit D, Affidavit of X.; Exhibit E, Affidavit of X; Exhibit F, Affidavit of E.S.; Exhibit G, Affidavit of X.; Exhibit 1, DD Form 214; Exhibit 2, Enlisted Record Brief; Exhibit 3, DD Form 4, Enlistment / Reenlistment Document; Exhibit 4, DD Form 1966, Record of Military Processing; Exhibit 5a, Combat Infantryman Badge Award; Exhibit 5b, Army Achievement Medal Award / Recommendation; Exhibit 5c, Various Awards, Decorations and Commendations; Exhibit 6a, Diagnosis History; Exhibit 6b, Urine Drug Screen; Exhibit 6c, Record of Emergency Room Treatment; Exhibits 6d, 6f and 6h, Record of Emergency Care & Treatment; Exhibit 6e, Record of Case Management Non-GWOT; Exhibit 6g, Record of Social Work; Exhibit 6i, Record of Inpatient Treatment; Exhibit 6j, Record of Physical Examination for Administrative Discharge; Exhibit 7a, Physician's Emergency Certificate; Exhibit 7b, Coroner's Emergency Certificate; Exhibit 7c, Discharge Summary; Exhibit 7d, Psychiatric Evaluation; Exhibit 7e, History & Physical; Exhibit 7f, Adult Psychosocial Assessment; Exhibit 7g, Adjunctive Therapy Assessment for Activity and Recreational Therapies; Exhibit 7h, Admission Worksheet; Exhibit 7i, Discharge Aftercare Plan; Exhibits 7j through 7p, Nursing Progress Notes; Exhibit 8, Patient Laboratory Results Inquiry; Exhibit 9, Report of Medical Assessment; Exhibit 10, Report of Medical History; Exhibit 11, Report of Mental Status Evaluation; Exhibits 12 and 15, Record of Proceedings Under Article 15, UCMJ; Exhibit 13, Developmental Counseling Forms; Exhibit 14, Record of Proceedings Under Article 15, UCMJ and related DA Form 4856, Development Counseling Form (Jan. 31, 2012) and Various DA Form 2823, Sworn Statements; Exhibit 16a, Memorandum from PVT X., Election of Rights; Exhibit 16b, Letter from MAJ X., PTSD Screening; Exhibit 17a, Memorandum from CPT X to Department of Veterans Affairs; Exhibit 24, Department of Defense Instruction, Number 1332.28, Subject: Discharge Review Board (DRB) Procedures and Standards; Exhibit 25, Secretary of Defense Memorandum for Secretaries of the Military Departments, Subject: Supplemental Guidance to Military Boards for Correction of Military Naval records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder; Exhibit 26, National Center For PTSD, U.S. Department of Veterans Affairs, Understanding PTSD and PTSD Treatment; Exhibit 27, Excerpts from Army Regulation 635-200, Active Duty Enlisted Administrative Separations; Exhibit 28, Excerpts from Anny Regulation 600-85, The Anny Substance Abuse Program; Exhibit 29, Excerpts from Anny Regulation 40-501, Standards of Medical Fitness; and Exhibit 30, OTSG/MEDCOM Policy Memo 10-040, Subject: Screening Requirements for Post- Traumatic Stress Disorder (PTSD) and mild Traumatic Brain Injury (mTBI) for Administrative Separations for Soldiers. Of note, none the documents listed as affidavits or exhibits listed in the attorney's brief were attached with the application. 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 under other than 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, his discharge was improper because it is based upon errors of procedure that were prejudicial, based on recommendations from his commanders in which they improperly introduced protected limited use evidence. 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 contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was improperly discharged. Applicant's counsel did not submit the document he referenced to support this contention. The applicant further contends, he was denied due process during his discharge process, when behavioral health personnel refused to perform a PTSD and mTBI screening prior to his administrative separation in violation of Army regulations and policy guidance. The applicant's mental status evaluation does not show that he was not screened for PTSD or mTBI per Army regulations and policy guidance in accordance with OTSG/MEDCOM Policy Memo 10-040. The applicant also contends, his discharge was also inequitable based on the totality of evidence relating to his capability to serve and quality of service, which mitigated the misconduct that caused the under other than honorable conditions characterization of service. The service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant additionally contends, his mental health conditions, including notable service- connected PTSD and major depressive disorder resulting from his combat experiences, existed during his service and were significant contributing factors that led to the misconduct underlying his discharge. 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. The record shows that on 29 February 2012, the applicant underwent a mental status evaluation which indicates he had a diagnosis of an adjustment disorder with depressed mood. Lastly, the applicant contends, his post-service conduct has been beneficial to both himself, his community and is more indicative of his overall honorable service than the misconduct attributable to his PTSD while he served in the Army; and since his discharge from the Army and despite his ongoing struggles with PTSD, he has been an upstanding citizen with no criminal record and has not used any illegal drugs. The applicant is to be commended for his efforts. However, this contention is 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 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 10 August 2018, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. in-service diagnosis of OBH and PTSD). Therefore, the board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions. However, 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. 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, 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: General Under Honorable Conditions 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 AR20170004132 7