1. Applicant's Name: a. Application Date: 31 May 2017 b. Date Received: 16 June 2017 c. Counsel: d. Previous Records Review: 3 October 2008, AR20080000274 Personal Appearance Hearing: 6 December 2010, AR20100013082 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 for his discharge. The applicant seeks relief contending, in pertinent part and in effect, the narrative reason for his discharge should be changed to "'Medical Retirement' or 'Secretarial Authority.'" It is both an error and an injustice that his commanders and medical authorities failed to refer him to an MEB prior to his discharge. His discharge is also unjust because he was diagnosed with PTSD at the time of his misconduct. The attorney brief detailed the applicant's military history consisting of his assignments, performance, and medical conditions that include his PTSD diagnosis, and behavioral health issues, which contributed to his misconduct and subsequently his discharge. The brief also stated that previous ADRB reviews were prior to the Secretary of Defense Memorandum, dated 3 September 2014, followed by an additional memorandum, dated 24 February 2016. The ADRB should refer the applicant's case to an MEB and if necessary, he should be reenlisted and referred to go through the MEB process. He had severely debilitating PTSD at the time of his discharge and could not reasonably perform his duties. Although the applicant is unable to work and while coping with his PTSD, he contributed his time to several civic organizations with his wife's assistance. He strives to be a productive citizen by helping others, including many veterans. The applicant, in his self-authored affidavit, states he takes full responsibility for making some wrong decisions, and while he does not excuse his conduct, circumstances were such that he saw no other options at the time. An upgrade would help him complete his education, and provide health care for his children. 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, depression, anxiety, alcohol abuse, and cannabis dependence. However, due to the nature of the misconduct, the applicant does not have a mitigating medical or behavioral health condition for the offenses that led to his separations from the Army. In a records review conducted at Arlington, VA on 24 August 2018, and by a 4-1 vote, the Board denied the request upon finding the separation was both proper and equitable. 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 / General (Under Honorable Conditions) b. Date of Discharge: 10 April 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 October 2006 and 1 November 2006 (2) Basis for Separation: The applicant was informed of the following reasons: driving under the influence of alcohol on 22 January 2006, being absent without leave from 20 to 21 March 2006, and from 19 May 2006 to 6 July 2006, testing positive for marijuana on 22 March 2006, and 27 July 2006, and failing to report to his appointed place of duty on 9 May 2006. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 31 October 2006, the applicant elected board appearance, which convened on 5 December 2007 15 February 2007, the applicant requested conditional waiver, contingent upon receiving no less favorable than a General (Under Honorable Conditions) discharge (5) Administrative Separation Board: 8 November 2006, GCMCA appointed board, which convened on 5 December 2006, and that board recommended General (Under Honorable Conditions) discharge 1 March 2007, GCMCA appointed new board (6) Separation Decision Date / Characterization: 4 April 2007 / GCMCA approved conditional waiver and directed a General (Under Honorable Conditions) discharge 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 May 2005 / 6 years b. Age at Enlistment / Education / GT Score: 24 / GED / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68W10, Health Care Specialist / 4 years, 17 days d. Prior Service / Characterizations: RA (4 February 2003 to 17 May 2005) / HD e. Overseas Service / Combat Service: SWA / Iraq (31 October 2003 to 12 July 2004) f. Awards and Decorations: ARCOM; AGCM; NDSM; GWOTEM; GWOTSM; OSR; CMB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand (GOMOR), dated 5 April 2006, indicates the applicant was reprimanded for failing a field sobriety test and being apprehended, and for his misconduct and endangering the safety of others by operating a vehicle while under the influence of alcohol. Electronic Copy of the DD Form 2624, dated 6 April 2006, shows that the applicant tested positive for marijuana during an PO (Probable Cause) urinalysis conducted on 22 March 2006. FG Article 15, dated 16 May 2006, for being AWOL on 20 March 2006, until he was apprehended on 21 March 2006, wrongfully using marijuana between 22 February 2006 and 22 March 2006. The punishment consisted of a reduction to E-2, forfeiture of $713 pay per month for two months (suspended), and extra duty for 30 days. FG Article 15, dated 1 August 2006, for being AWOL from 19 May 2006 to 6 July 2006, and wrongfully using marijuana between 22 February 2006 and 22 March 2006. The punishment consisted of a reduction to E-1 (suspended), forfeiture of $636 (suspended), and extra duty for 30 days. Report of Mental Status Evaluation, dated 3 August 2006, indicates the applicant met the requirements for an MEB, and that his MEB evaluation was scheduled for 4 August 2006. Electronic Copy of the DD Form 2624, dated 4 August 2006, shows that the applicant tested positive for marijuana during an IR (Inspection, Random) urinalysis conducted on 27 July 2006. Report of Proceedings by Board of Officers with summary of separation proceedings on 5 December 2006, shows that the unit commander, during her testimony, referenced the applicant self-referring himself into ASAP after his DUI (page 113 of separation file). The applicant also testified, subsequent to his unit commander's testimony, that he enrolled into ASAP prior to being tested, and that he tested positive in a UA about two weeks prior to his enrollment in ASAP. In his statement to the Board, he stated he enrolled himself into ASAP for help (page 118 of separation file). Memorandum, dated 22 January 2007, subject: Legal Review of Administrative Separation Board IAW AR 635-200, 14-12c [the applicant], rendered by the servicing Administrative Law Attorney, made reference to a legal objection to the Government introducing a limited use evidence (self-referral into ASAP by the applicant's unit commander, a statement prior to any introduction by the applicant on the issue of his self-referral into ASAP) during the administrative separation board proceedings. (Pages 103-104 of separation file) The legal review indicated that the "statements violated the provisions of ARs 600-85, paragraph 6-5c and 635-200, paragraph 3-8a because the Government initially introduced limited use evidence during the relevant board proceedings," and that the applicant was "entitled to an 'Honorable' discharge" or "the GCMCA may set aside the board proceedings and refer the case to a new board for rehearing." (Note the GCMCA appointed a new board on 1 March 2007; however that board did not convene because the applicant requested conditional waiver, which was approved on 4 April 2007.) i. Lost Time / Mode of Return: 51 days (AWOL: 20 and 21 March 2006, for two days and 19 May 2006 to 6 July 2006 for a period of 49 days) / First AWOL incident: the applicant was apprehended by military authorities at his on-post quarters. Second AWOL incident: the applicant returned to his unit 6 July 2006. j. Diagnosed PTSD / TBI / Behavioral Health: Medical Record, dated 14 July 2006, indicates the applicant reported multiple PTSD symptoms, and that he had an adjustment disorder and possible PTSD. Health Records, dated 7, 14, and 20 July 2006, and 1 August 2006, all indicate the applicant had an "Adjustment disorder," including depression and anxiety disorder "NOS." Report of Medical History, dated 1 August 2006, indicates that the applicant and examiner noted behavioral health issues and evaluations. Report of Mental Status Evaluation, dated 31 August 2006, indicates the applicant's diagnoses of "AXIS I" as "Post traumatic stress disorder; alcohol dependence; marijuana abuse; partner relational problem." The report further reported that it was the opinion of the behavioral health examiner, that the applicant's clinical and social history, including marital problems and misconduct was clearly consistent with and was commonly seen in cases of combat-related post-traumatic stress disorder, but complicated and exacerbated by his continued alcohol and marijuana abuse. (Page 71 of separation file) Health Records, dated after 7 September 2006, shows diagnoses of chronic PTSD, anxiety disorder, adjustment disorder, and depression. Memorandum, dated 29 November 2006, rendered by Chief, Social Work Service, indicates that while treating the applicant therapeutically, it became obvious the applicant exhibited symptoms of PTSD, and it was his professional opinion that the symptoms the applicant was experiencing were the result of his war experiences in Iraq. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 31 May 2017, with attorney-authored brief with list of exhibits attached. 6. POST SERVICE ACCOMPLISHMENTS: The applicant's documentary evidence provides that although the applicant is unable to work and while coping with his PTSD, he has contributed time to several civic organizations with his wife's assistance and strives to be a productive citizen by helping others, including many veterans. 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 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 requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives as approved by the separation authority. 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. The applicant contends the discharge was unjust because he was diagnosed with PTSD at the time of his misconduct and that his commanders and medical authorities failed to refer him to an MEB prior to his discharge. 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. Regarding his contention that he should have been medically discharged or retired, Army Regulation 635- 200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant's contentions regarding his behavioral health issues which involved being diagnosed with 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents 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 contends he should be reenlisted for referral and processed through an MEB. However, 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 educational benefits through the use of the GI Bill and complete his education. 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 character of the applicant's discharge is commensurate with his overall service record. 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 24 August 2018, and by a 4-1 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: No Change 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: SECRETARIAL REVIEWING AUTHORITY: While the Board found your separation was both proper and equitable, they identified several erroneous entries to be corrected on your DD Form 214 (Certificate of Release or Discharge from Active Duty). Notwithstanding the Board's determination; as the Secretarial Reviewing Authority, the Deputy Assistant Secretary of the Army (Review Boards) reviewed the findings, conclusions, and the board's recommendation under the authority of Title 10 United States Code Section 1553(b) and Department of Defense Instruction 1332.28 (Discharge Review Board (DRB) Procedures and Standards), enclosure E3.7.1.1.1. The Deputy Assistant Secretary of the Army (Review Boards) found sufficient evidence to upgrade the characterization of service to Honorable. Therefore, your DD Form 214 will be corrected by issuing you a new DD Form 214 reflecting your characterization of service as Honorable, the narrative reason as Misconduct (Minor Infractions), the separation authority as AR 635-200, chapter 14-12a, and the separation program designator (SPD) JKN. 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 AR20170010162 1