1. Applicant's Name: a. Application Date: 25 August 2017 b. Date Received: 25 August 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel requests an upgrade of general (under honorable conditions) discharge to honorable and that the applicant be medically retired with a 70 percent disability as recommended by the Medical / Physical Evaluation Board and that all derogatory information related to the administrative separation be removed from the record. The applicant also requests that the official record reflect all awards, including an Army Achievement Medal (AAM) and Army Good Conduct Medals (AGCM), and that the Army award the applicant the Purple Heart based on injuries suffered in Iraq. The applicant seeks relief contending, in effect, that these actions were not those of a Soldier using marijuana to get high, the applicant already had prescriptions for many different Opioids, but the applicant simply wanted relief from traumatic brain injury-induced migraines; the Commanding General, 4th Infantry Division, disregarded the Medical Opinions of Evaluation Boards, seemingly choosing punishment over treatment; and the Defense Department's current understanding of how PTSD and TBI can significantly impact decision- making led to guidance that should move the board to upgrade the applicant's discharge and medically retire the applicant. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), the notes indicate diagnoses of Adjustment Disorder with depressed mood/with disturbances of emotions and conduct, Anxiety Disorder NOS, Cannabis Abuse, Chronic PTSD, Major Depressive Disorder, Panic Disorder, Personality Disorder, and Post-Concussion Syndrome. The applicant is 70% service-connected; 30% for PTSD from the VA. The VA has also diagnosed the applicant with PTSD, Generalized Anxiety Disorder, and mTBI. In summary, the applicant has a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 24 October 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post- service diagnoses of PTSD, TBI, and OBH), and a prior period of honorable service. 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 / Chapter 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 19 January 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: Evidence of record shows that on 22 September 2009, separation action was initiated against the applicant for testing positive during company random urinalysis inspections for marijuana use on 20 February 2009, 17 June 2009, and 8 July 2009. On 28 September 2009, this action was withdraw without prejudice. On 30 September 2009, the applicant was again notified of intent to separate. (2) Basis for Separation: The applicant was informed of the following reasons: for wrongfully using marijuana between 21 January 2009 and 20 February 2009, 18 May 2009 and 17 June 2009, 9 June 2009 and 8 July 2009, and 20 July 2009 and 19 August 2009 (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 6 October 2009 (5) Administrative Separation Board: The applicant voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a General (Under Honorable Conditions) discharge. (6) Separation Decision Date / Characterization: 8 December 2009 / General (Under Honorable Conditions); it should be noted that prior to approving the applicant's discharge the separation authority reviewed the Medical Evaluation Board's findings indicating that the applicant was diagnosed with PTSD, requiring protected environment AR 40-501, paragraph 3-33; depressive disorder not otherwise specified, requiring duty in a protective environment, AR 40-501, paragraph 3-32; and chronic headaches, causing insufficient duty performance and contributing to his impairment, AR 40-501, paragraph 3-41e(1). The separation authority find that the applicant's medical conditions were not a direct or substantial contributing cause of his misconduct and determined that the administrative separation under Chapter 14-12c, Commission of a Serious Offense, was appropriated in this case. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 December 2007 / 3 years b. Age at Enlistment / Education / GT Score: 30 / HS Graduate / 93 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92W10, Water Treatment Specialist / 7 years, 2 months, 1 day d. Prior Service / Characterizations: RA, 19 November 2002 to 19 November 2004 / HD RA, 20 November 2004 to 18 December 2007 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (10 October 2005 to 10 September 2006) f. Awards and Decorations: AGCM, NDSM, GWOTSM, KDSM, ICM-CS, ASR, OSR-2 g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 5 March 2008, reflects the applicant tested positive for THC 316 during an Inspection Other (IO) urinalysis testing conducted on 20 February 2009. Electronic copy of the DD Form 2624, dated 24 June 2009, reflects the applicant tested positive for THC 311 during an Inspection Random (IR) urinalysis testing conducted on 17 June 2009. Electronic copy of the DD Form 2624, dated 20 July 2009, reflects the applicant tested positive for THC 118 during an Inspection Random (IR) urinalysis testing conducted on 8 July 2009. Electronic copy of the DD Form 2624, dated 9 September 2009, reflects the applicant tested positive for THC > LOL during an Inspection Unit (IU) urinalysis testing conducted on 19 August 2009. FG Article 15, dated 16 March 2009, for the wrongful use of marijuana between 22 January 2009 and 20 February 2009. The punishment consisted of reduction to E-3, forfeiture of $929.00 pay per month for two months (suspended), and extra duty for 45 days. FG Article 15, dated 15 June 2009, for wrongfully using marijuana between 14 April 2009 and 13 May 2009. The punishment consisted of reduction to E-1, forfeiture of $699.00 pay per months for two months (suspended) and extra duty and restriction for 45 days. On 29 July 2009 all punishment was set aside. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 18 December 2009, indicates the applicant met the retention standards prescribed in Chapter 14-12b, and there was no psychiatric disease or defect, which warrant disposition through medical channels which accounted for his behavior. However he was undergoing a MEB for a variety of other conditions, to include PTSD. The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in administrative/board proceedings. The applicant had been counseled on his drug use by his mental health providers and told to discontinue his use. He felt it was the only thing that helped with his migraine headaches and other complaints of pain. He stated he had been on numerous medications which cause him multiple side effects both physical and mental. He discontinued these in the wake of the side effects and had receive d a medical prescription for the use of marijuana from a civilian provider. The applicant had medical conditions and a previous PTSD diagnosis which if found disqualifying, did warrant compensation either from the Army or upon making a claim from the VA. However he also willfully continued to use marijuana for medicinal purposes which was against Army regulation, prescriptive or not. He stated his use was not habitual and only occasional. 5. APPLICANT-PROVIDED EVIDENCE: Online application; DD Form 149; memorandum in support of application; Hagel Letter; Carson Letter; several memorandum's of record; background check, report of medical assessment; record of proceedings under Article 15; lab result report of drug test; and DD Form 214 for the period of service under review. 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. 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, 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 through legal counsel requests an upgrade of his general (under honorable conditions) discharge to honorable and that he be medically retired with a 70 percent disability as recommended by the Medical / Physical Evaluation Board and that all derogatory information related to his administrative separation be removed from his record. 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. Furthermore, by violating the Army's policy not to possess or use illegal drugs, the applicant 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 a honorable discharge. 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 seeks relief contending that his actions were not those of a Soldier using marijuana to get high, he already had prescriptions for many different Opioids, he simply wanted relief from traumatic brain injury-induced migraines; the Commanding General, 4th Infantry Division, disregarded the Medical Opinions of Evaluation Boards, seemingly choosing punishment over treatment; and the Defense Department's current understanding of how PTSD and TBI can significantly impact decision-making led to guidance that should move the board to upgrade the applicant's discharge and medically retire him. The applicant's contentions were noted; however, as noted in the Report of Mental Status Evaluation, the applicant had been counseled on his drug use by his mental health providers and told to discontinue his use. However he willfully continued to use marijuana for medicinal purposes which was against Army regulation, prescriptive or not. By violating the Army's policy not to possess or use illegal drugs, the applicant compromised the trust and confidence placed in a Soldier. Prior to approving the applicant's discharge the separation authority reviewed the Medical Evaluation Board's findings indicating that the applicant was diagnosed with PTSD, requiring protected environment AR 40-501, paragraph 3-33; depressive disorder not otherwise specified, requiring duty in a protective environment, AR 40-501, paragraph 3-32; and chronic headaches, causing insufficient duty performance and contributing to his impairment, AR 40-501, paragraph 3-41e(1). The separation authority find that the applicant's medical conditions were not a direct or substantial contributing cause of his misconduct and determined that the administrative separation under Chapter 14-12c, Commission of a Serious Offense, was appropriated in this case. 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. Also, 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 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 applicant also requests that his official record reflect all his awards including his Army Achievement Medal (AAM) and Army Good Conduct Medals (AGCM), and that the Army award him the Purple Heart based on his injuries suffered in Iraq. However, the applicant's requested issue do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding these issues. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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 October 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of PTSD, TBI, and OBH), and a prior period of honorable service. 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 AR20170012965 1