1. Applicant's Name: a. Application Date: 10 June 2017 b. Date Received: 27 June 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions to honorable and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, his discharge should be upgraded because he developed PTSD while in service. He was in a state of depression at the time of his offense. He was afraid talk to any superior about the sexual assault he experienced. His superior bullied him causing a major breakdown. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, there is insufficient evidence to determine if the applicant had a medical or behavioral health condition that was mitigating for the offenses which led to his separation from the Army. In summary, although SM endorsed a sexual assault, there is a lack of information about the assault, to include time frame during his period of service, to determine mitigation. In a records review conducted at Arlington, VA on 27 June 2018, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's length of service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), and homelessness. 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 / AR 635-200, Paragraph 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 4 December 2002 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 4 November 2002 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; he tested positive for cocaine while in the US Army. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 6 November 2002, the applicant waived legal counsel. (5) Administrative Separation Board: The applicant waived consideration of his case by an administrative separation board, although he was not entitled to a board. (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 May 2000 / 4 years b. Age at Enlistment / Education / GT Score: 23 years / 3 years / 83 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13C10, Tactical Automated Fire Control / 2 years, 7 months, 2 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 30 July 2001, revealed that the applicant was under investigation for assault, larceny of private property, failure to obey an order or regulation and robbery. Positive urinalysis test coded CO (Competence for Duty/Command Direct/Fitness for duty), dated 15 August 2002, cocaine. CID Report of Investigation, dated 12 September 2002, relates that the applicant was under investigation for wrongful use of cocaine. An approved Company Bar to Reenlistment, dated 19 September 2002, for failing a urinalysis test. FG Article 15, dated 3 October 2002, for wrongful use of cocaine between (15 July 2002 and 15 August 2002); reduction to PVT / E-1, forfeiture of $552 pay for two months, extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: Online application (six pages); iPERMS administration record view; and a DD Form 214 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 general (under 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 should be upgraded because he developed PTSD while in service; and he was in a state of depression at the time of his offense. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable. The service record contains no evidence of PTSD diagnosis or a diagnosis of depression and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant further contends, he was afraid to talk to any superior about the sexual assault he experienced. The CID nor the military police reports substantiates the applicant's claim of sexual assault. Although the applicant alleges that he was a victim of sexual assault during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Although the applicant alleges that he was a victim of sexual assault during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge. Additionally, the record contains a DD Form 2624 (Specimen Custody Document-Drug Testing) which shows that the test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty." The commander directs an individual test for fitness for duty. The commander has a suspicion that a Soldier is using a controlled substance, but does not have probable cause." The Limited Use Policy applies to this test basis, per AR 600-85. However, the evidence of record shows that the applicant received an Article 15 for wrongfully using cocaine and the appropriate punishment was imposed, when he rendered a positive urine sample during a command directed urinalysis. Further, the applicant was afforded the opportunity to consult with legal counsel, who would have informed him if the Limited Use Policy applied. In view of the aforementioned, it was determined that the code on the DD Form 2624 was in all likelihood incorrect and should have been coded IU which indicates "Inspection Unit" commander directed unit sweep used for 100 percent unit testing. As further evidence that the test was improperly coded, the applicant consulted with defense counsel in conjunction with his administrative discharge under the provisions of Chapter 14, AR 635-200 for misconduct, and defense counsel did not raise the issue as to characterization of service. If this was in fact a harmless error, then the rights of the applicant were not prejudiced by the error on file in this case. Furthermore, the evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made. 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 27 June 2018, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's length of service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), homelessness, and matters surrounding the discharge. 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 AR20170009873 1