1. Applicant's Name: a. Application Date: 13 August 2017 b. Date Received: 21 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, a change to the narrative reason for discharge and a change to the reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that he is a combat veteran who served in both Iraq and Afghanistan and conflicts and that limited use evidence was improperly used in determining the character of service. The applicant contends that PTSD/TBI contributed to the misconduct and that the quality of service outweighs the misconduct. The applicant contends the things they witnessed and did in Afghanistan caused experimentation with marijuana to see if it would relax and help the applicant sleep. The applicant smoked marijuana after being relieved from duty. It was the use of marijuana that showed up on the urinalysis that led to separation from the Army. The applicant also contends that he found it difficult to admit to himself that he might be suffering from behavioral problems caused by his service. Accordingly, the applicant denied his symptoms and delayed seeking help until shortly before the separation. The applicant was referred for screening for traumatic brain injury at the hospital at Fort Polk shortly before separation, and was told that the symptoms were severe and needed further evaluation. However, the applicant was never evaluated by the Army due to separation shortly afterwards. Following separation from the Army, the applicant tried to push through the problems without help. Ultimately, the applicant's father convinced him to apply to the Department of Veterans Affairs for help and was awarded a 30 percent rating for PTSD and a non-compensable rating for traumatic brain injury. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the applicant had a medical or behavioral health condition that was mitigating for the offenses which led to his separation from the Army. A review of electronic military medical records indicated SM did not have a behavioral health treatment in-service, but was found to not have any significant mental health issues and was psychiatrically cleared for administrative action. Post-service, the SM has a 30% service connected disability rating from the VA for PTSD (claimed as an anxiety disorder and sleep disturbance). In summary, a diagnosis of PTSD can be associated with alcohol and substance abuse; therefore there is a nexus between SMs misconduct and behavioral health conditions. In a personal appearance hearing conducted at Arlington, VA on 16 July 2018, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD) and as a result it is inequitable. Accordingly, 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: 23 November 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 September 2011 (2) Basis for Separation: The applicant was informed of the following reason: for his positive urinalysis test on 11 July 2011 showing use of marijuana, a schedule I controlled substance (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 September 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 October 2011 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 March 2008 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 119 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 8 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (21 August 2008 to 1 January 2009) Afghanistan (26 October 2010 to 26 October 2011) f. Awards and Decorations: AAM, VUA, AGCM, NDSM, ACM-2CS, GWOTSM, ASR, OSR, NATOMDL, CIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Record, dated 3 July 2011 and testing register, which makes reference to a request for a 100% Urinalysis of Apache Company, 2-4 Infantry and that the test was coded IU (Inspection Unit). A separated report shows the applicant tested positive for THC 49. FG Article 15, dated 21 September 2011, for the wrongful use of marijuana between 27 June 2011 and 11 July 2011, while receiving special pay in Afghanistan. The punishment consisted of reduction to E-2, forfeiture of $822 for one month (suspended), and extra duty for 20 days. Report of Mental Status Evaluation, dated 15 September 2011, shows the applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong. Counseling statement, dated 16 August 2011, for failing a urinalysis (Article 112a, wrongful use, possession, etc. of controlled substances), dereliction of duty, and being intoxicated for the performance of duties due to wrongful indulgence of controlled substances. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 20 August 2011, submitted by the applicant prior to his discharge shows he made reference to having been diagnosed with depression years ago and was treated for it and that at the age of 17 he was diagnosed with major depression disorder with psychotic features and bipolar. It was noted by the examiner at the time that the applicant had no issues at that time. Documents from the Department of Veterans Affairs show the applicant was granted 30 percent service connected disability for PTSD (also claimed as anxiety disorder and sleep disturbances) dated 6 June 2014. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; memorandum in support of his application; and appendix documents 1-45 (to include DD Form 214, enlistment contract, award of the CIB, separation packet documents, decision documents from the Department of Veterans Affairs granting him 30 percent service connected disability for PTSD (also claimed as anxiety disorder and sleep disturbances) dated 6 June 2014, extracts from AR 635-200 and AR 600-85, and a Declaration. 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, a change to his narrative reason for discharge and a change to his reentry eligibility (RE) code. 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 noncommissioned officer, 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. 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 was separated under the provisions of Chapter 14, paragraph 14-12c (2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK," with a RE code of 4. Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, reentry code, entered in block 27, and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. 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 seeks relief contending that he is a combat veteran who served in both Iraq and Afghanistan conflicts and that limited use evidence was improperly used against him in determining his character of service. The applicant contends his PTSD/TBI contributed to his misconduct and that his quality of service outweighs his misconduct. He contends the things he witnessed and did in Afghanistan caused him to experiments with marijuana to see if it would relax him and help him sleep. He smoked marijuana after he had been relieved from duty. That was the use of marijuana that showed up on the urinalysis that led to his separation from the Army. He also contends that he found it difficult to admit to himself that he might be suffering from behavioral problems cause by his service. Accordingly, he denied his symptoms and delayed seeking help until shortly before his separation. He was referred for screening for traumatic brain injury at the hospital at Fort Polk shortly before his separation, he was told that his symptoms were severe and he needed further evaluation. However, he was never evaluated by the Army due to his separation shortly afterwards. Following his separation from the Army, he tried to push through his problems without help, ultimately, his father convinced him to apply to the Department of Veterans Affairs for help and this is when he was awarded a 30 percent rating for PTSD and a non-compensable rating for traumatic brain injury. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered and the applicant is to be commended on his accomplishment. Evidence in the record shows that the applicant was discharge as a result of testing positive for the wrongful use of marijuana on an inspection unit (IU) (commander directed unit sweep used for 100% unit testing) drug test and not on a competence for duty/command direct/fitness for duty (CO) test which the commander directs an individual test for fitness for duty. In which the commander has a reasonable suspicion that a Soldier is using a controlled substance, but does not have probable cause. This is when limited use policy applies to this test basis. Evidence in the records shows that on 3 July 2011 the command requested that a 100% Urinalysis of Apache Company, 2-4 Infantry be conducted and that the test was coded IU (Inspection Unit). A separated report shows the applicant tested positive for THC 49 on that test. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The Report of Medical History, dated 20 August 2011, submitted by the applicant prior his discharge shows he made reference to having been diagnosed with depression years ago and was treated for it and that at the age of 17 he was diagnosed with major depression disorder with psychotic features and bipolar. It was noted by the examiner at the time that the applicant had no issues at that time. It should also be noted that at the time of enlistment the applicant did not note on his Report of Medical History that he had been diagnosed with depression prior to his enlistment or that at the age of 17 he was diagnosed with major depression disorder with psychotic features and bipolar. The post-service medical documents submitted by the applicant were noted; however, the fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. 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. It should be noted by regulation, an under other than honorable conditions (UOTHC) discharge is normally appropriate for a member separated by reason of misconduct (drug abuse). It appears the applicant's generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 16 July 2018, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD) and as a result it is inequitable. Accordingly, 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. 11. 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 AR20170016123 7