1. Applicant's Name: a. Application Date: 28 February 2017 b. Date Received: 3 March 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 served honorably in Afghanistan as he was directly involved in combat missions, engagements, and under direct enemy fire in Ghazan Province. Upon returning from Afghanistan, he immediately had difficulty adjusting to a non- combat environment due to factors, such as serving with Soldiers who did not serve in a combat. He got married and had a son born upon his return, which greatly increased the difficulties to adjusting. His spouse had an extramarital affair with one of the Soldiers he served with in Afghanistan. He tried handling the issue in the proper way, by informing his company commander of the affair. However, no action was taken against the Soldier, who remained in the unit. His frustration grew to the point of no longer wanting to be in the same unit with the Soldier who had so betrayed him. He began self-medicating due to his adjustment issues and frustrations, by smoking marijuana to reduce his personal and mental pain. Upon testing positive during a urinalysis, he agreed to and completed the Army Substance Abuse Program prior to his discharge. He is proud of his efforts abstaining from using drugs. He is currently employed as a Land Surveyor and assists veterans who are struggling with their return from military service. An upgrade would provide him the opportunity to continue serving veterans. It would also allow him to attend college towards obtaining an engineering degree. His ultimate goal is to become a bioengineer, making prosthetics for Soldiers who have lost limbs due to combat service. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, the applicant had a medical or behavioral health condition that was partially mitigating for the offenses which led to his separation from the Army. In summary, SMs behavioral health conditions are considered only partially mitigating because they appear to be largely in response to marital rather than combat experiences. In a records review conducted at Arlington, VA on 13 June 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, severe family matters, and an in-service diagnosis of OBH. Therefore, 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: 16 July 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 June 2014 (2) Basis for Separation: The applicant was informed of the following reasons: Between 13 January 2014 and 11 February 2014, he wrongfully used marijuana. Between 6 February 2014 and 11 February 2014, he wrongfully used cocaine. He was also absent without leave from 3 March 2014 to 17 April 2014. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Waived, 5 June 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: In an undated memorandum / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 July 2011 / b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P, Infantryman / 2 years, 10 months, 21 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (24 March 2012 to 24 August 2012) f. Awards and Decorations: AAM; NDSM; ACM-2CS; GWOTSM; ASR; NATO MDL; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: There is no record of any negative counseling statements or actions under the UCMJ. However, he was separated at the rank of E-1, and his ERB shows he was reduced to E-1 on 30 May 2014. Discharge orders i. Lost Time / Mode of Return: 45 days (AWOL: 3 March 2014 to 16 April 2014) / the applicant returned to his unit j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 28 February 2017, and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, he is currently employed as a Land Surveyor and assists veterans who are struggling with their return from military service. 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. 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, 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 and as a result, having to self-medicate that led to his positive urinalysis and subsequently his discharge were carefully considered. However, the service record does not support the applicant's claim for any behavioral health issues diagnoses, nor did the applicant provide any documentary evidence of any behavioral health diagnoses. If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., documentary evidence of any behavioral health diagnoses) for the Board's consideration because they are not available in the official record. The applicant contends that he was having family issues, such as his wife having an affair, which affected his behavior and ultimately caused him to be discharged. However, 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. The applicant contends the discharge was unjust because he tried handling the issue of his wife's affair with a Soldier in the unit, in the proper way by informing his company commander of the affair, but no action was taken against the Soldier, who remained in the unit, which frustrated him and he received no help from his command. 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 any 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 evidence has been provided with the request for an upgrade of the discharge. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the Post 9/11 GI Bill. However, eligibility for veteran's 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 13 June 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, severe family matters, and an in-service diagnosis of OBH. Therefore, 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 AR20170004552 1