1. Applicant's Name: a. Application Date: 22 March 2017 b. Date Received: 2 May 2017 c. Counsel: 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 effect, he served his country in combat, was wounded, and responded to his situation negatively and was punished for it. He does not make excuses for his actions, but he believes that he was unjustly discharged. During his first deployment to Afghanistan, he spent 16 months painfully manipulating the difficult terrain of the mountains as a member of a small reconnaissance team. The team often found their selves in contact with the enemy. On one violent occasion, the applicant was a member of a 16 man "kill team" that was ambushed by a numerically superior enemy force. Before the fight was over his team had two Soldiers killed in action and two wounded. He witnessed the deaths of the two Soldiers, while attempting to evacuate them a cable snapped sending them to their deaths. The applicant was awarded the Bronze Star with "V" Device for his actions. During his second deployment, he participated in over 50 combat operations with many different elements throughout their entire area of operation. As a member of a two man sniper team, he provided long range over watch security and precision fire on deliberately selected targets. He states, when he redeployed in 2009, his life as he knew it, began to fall apart much faster than he was able to cope. He began suffering from some symptoms of what he believed to be posttraumatic stress that had been festering inside of him since his first combat tour in 2006. He began self-medicating, using marijuana, after his first tour with some of his closest comrades that had been experiencing some of the same symptoms. At the time, it was the best and most comfortable means for him to cope with some of his darkest experiences from extreme close combat. He states, the means in which he chose to deal with those symptoms was illegal, but it was extremely effective at allowing him to suppress and cover up some of the feelings of anxiety and depression. Shortly after he redeployed in 2009, he unexpectedly discovered that his wife at the time, had been having affairs with Soldiers from his unit. He was very close to some of the Soldiers who were involved, which devastated him. At twenty two years old, he simply was not able to overcome the downward spiral that he had suddenly found himself in. He believed that his chain of command was not taking the situation as serious as he believed it to be and felt alone. The applicant further describes his overwhelming experiences in his self-authored statement. He states that joining the Army was something that he had always knew he was meant to do. He never expected to have this outcome, but he believes that his service as a whole, was honorable. He states that the events that occurred within a six month period immediately before his discharge, ended his potentially promising military career. He believes that an honorable discharge would allow him to obtain educational benefits, which will allow him to use the GI Bill and enhance his life and better provide for his family. An upgrade would also allow him the confidence to produce his DD Form 214, to potential employers. He respects the Board's decision and thanks the Board for their service. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, AHLTA, and JLV, the applicant was diagnosed with PTSD and OBH. However, the conditions are not a likely cause of misconduct. Therefore, a nexus between the PTSD/OBH condition and the misconduct is not likely. In a records review conducted at Arlington, VA on 24 August 2018, and by a 3-2 vote, the Board determined that the characterization of service was improper. The record shows the government introduced into the discharge packet the results of a biochemical test which was coded RO (Rehabilitation Testing) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. The inclusion of the test administered as part of the applicant's rehabilitation program is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 20 October 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 September 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 9 September 2010, he failed to report; On or about 1 September 2010, he failed to report; On or about 20 August 2010, he failed to report; On or about on or about 12 July 2010, he went AWOL; On or about 16 July 2010, he wrongfully possessed drug paraphernalia; and, On or about 15 May 2010, he wrongfully possessed Spice, a chemically augmented herbal substance. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 30 September 2010, the applicant waived his rights to consult with a JAG officer. The applicant opted to seek civilian legal counsel at his own expense. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 7 October 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 December 2007 / 3 years b. Age at Enlistment / Education / GT Score: 21 / GED / 105 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10 2C, Infantryman / 5 years, 3 months, 7 days d. Prior Service / Characterizations: RA, 23 June 2005 - 3 December 2007 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (12 February 2006 - 12 June 2007 / 29 December 2008 - 17 December 2009) f. Awards and Decorations: BSM-V, ARCOM, AAM, AGCM, NDSM, ACM-2CS, GWOTEM, GWOTSM, AFSM, OSR-2, NATOMDL-2, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Summarized Article 15, dated 28 June 2010, for wrongfully possessing a chemically augmented herbal substance in violation of a lawful general order (15 May 2010). The punishment consisted of extra duty and restriction for 7 days (both suspended for 90 days). Military Police Report, dated 13 July 2010, reflects the applicant's room was inventoried, while he was AWOL, and contraband was found, which latter tested positive for marijuana. Five Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "FTR (Failure to Report)," effective 11 July 2010; From "FTR" to "AWOL (Absent With Out Leave)," effective 12 July 2010; From "AWOL" to "PDY," effective 2 August 2010; From "PDY" to "Hospitalized," effective 10 August 2010; and, From "Hospitalized" to "PDY," effective 9 August 2010. FG Article 15, dated 18 August 2010, for being AWOL (between 12 July and 2 August 2010); and, for wrongfully possessing drug paraphernalia, in violation of a general order (16 July 2010). The punishment consisted of a reduction to E-4; forfeiture of $811 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 10 September 2010, reflects the suspended portion of the punishment, imposed on 19 August 2010, was vacated because the applicant failing to go at the time prescribed to his appointed place of duty on 20 August, 1 and 9 September 2010. Electronic Copy of DD Form 2624, dated 15 September 2010 , reflects the applicant tested positive for THC 702 (marijuana), during an Rehabilitation Testing (RO) urinalysis testing, conducted on 9 September 2010. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 21 days (AWOL, 12 July 2010 - 2 August 2010) / None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 31 August 2010, reflects the applicant was evaluated for separation under chapter 13. The applicant cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment Disorder with Depressed mood; PTSD (chronic); and, Cannabis Abuse. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; a self-authored statement; copies of his military service records; and, ten character statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided character statements that reflect the applicant has gained employment. 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 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 record of service, the issues and documents submitted with his application were carefully reviewed. The evidence of record shows that the applicant's separation packet contains an electronic DD Forms 2624 (Specimen Custody Document for Drug Testing) which show that the urinalysis test was coded RO, which indicates "Rehabilitation Testing." The government introduced this document into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. The discharge was not consistent with the procedural and substantive requirements of the regulation, was not within the discretion of the separation authority, and the applicant was not provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 24 August 2018, and by a 3-2 vote, the Board determined that the characterization of service was improper. The record shows the government introduced into the discharge packet the results of a biochemical test which was coded RO (Rehabilitation Testing) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. The inclusion of the test administered as part of the applicant's rehabilitation program is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change 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 AR20170009661 2