1. Applicant's Name: a. Application Date: 24 July 2017 b. Date Received: 28 July 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and a change to the narrative reason for discharge. The applicant seeks relief contending, in effect, that his discharge does not reflect the true nature of his service. He was discharged under duress for untreated TBI and PTSD, both of which are being treated by the VA. He contends he requested help numerous times and was denied and was then sexually assaulted in front of witnesses by his platoon sergeant and given a misconduct discharge. He served honorably and with distinction, was promoted from E-1 to E-4 during a tour in Iraq and put in a leadership role, serving as a squad leader. He was directly exposed to multiple blasts resulting in TBI and PTSD that are actually being treated by the VA. He was treated for these injuries and instead was improperly diagnosed, over medicated and put on manual details until his discharge. He was assigned treatment and then put on details to intentionally cause him to be a failure in the treatment program. This was an intentional effort by his command to make the case for a discharge instead of accurately assessing and treating him. He believes the way he was discharged was dishonest and under duress. At the time of discharge he was not aware of the severity of the TBI or PTSD. The medication he was forced to take (Zoloft, Seroquel, Paxil, Clonazepam, and Amtoien) severely impacted his ability to make sound decisions and perform on the job. 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) there was a nexus between a behavioral health condition and the misconduct, which led to the applicant's separation from the Army. The Applicant's diagnosis of PTSD and mental status at the time of the misconduct mitigate the misconduct. Evidence in the record shows the applicant had a prior records review on 13 August 2008. In a personal appearance hearing conducted at Arlington, VA on 3 June 2018, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBH and PTSD), and post-service accomplishments. Therefore, the board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. The board determined the reentry eligibility (RE) code was proper and equitable and voted not to change it. (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: 17 November 2004 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 October 2004 (2) Basis for Separation: The applicant was informed of the following reasons: testing positive for marijuana on two occasions (14 May 2004 and 27 August 2004); and Being arrested by the Military Police on Fort Riley military installation, on 23 August 2004, for possession of marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 2 November 2004 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 5 November 2004 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 August 2001 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11C10, Indirect Fire Infantryman / 3 years, 2 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (7 April 2003 to 31 March 2004) f. Awards and Decorations: AGCM, NDSM, GWOTSM, GWOTEM, ASR, CIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Three electronic copies of DD Form 2624, dated 26 May 2004, 6 August 2004, and 20 September 2004. FG Article 15, dated 15 July 2004, for wrongfully using marijuana between (15 April 2004 and 14 May 2004). The punishment consisted of reduction to E-1, forfeiture of $596 pay for two months, and extra duty and restriction for 45 days. Rehabilitation Failure Statement for Chapter 9, which makes reference to the applicant having been enrolled in the Army Substance Abuse Program (ASAP) on 16 June 2004, following a positive urinalysis for tetrahydrocannabinol (THC). Military Policy Report, dated 23 August 2004, which shows the applicant was the subject of investigation for wrongful possession of controlled substance (marijuana) Several negative counseling statement for various actions of misconduct and performance to include ASAP failure and testing positive for THC. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF, however, the applicant submitted medical document showing he suffers with PTSD and TBI and is receiving treatment from the VA. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA Notes; problem report with diagnoses codes for PTSD, TBI, etc.; and Department of Veterans Affairs letter, dated 24 July 2017, which shows the applicant was awarded 90 percent combined service-connected disability. 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 requests an upgrade of his general (under honorable conditions) discharge to honorable and a change to the narrative reason for discharge. 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 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 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." 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 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 his discharge does not reflect the true nature of his service. He was discharged under duress for untreated TBI and PTSD. Both of which are being treated by the VA. He contends he requested help numerus times and was denied and was then sexually assaulted in front of witnesses by his platoon sergeant and given a misconduct discharge. He was directly exposed to multiple blasts resulting in TBI and PTSD that are actually being treated by the VA. He was treated for these injuries and instead was improperly diagnosed, over medicated and put on manual details until his discharge. He was assigned treatment and then put on details to intentionally cause him to be a failure in the treatment program. This was an intentional effort by his command to make the case for a discharge instead of accurately assessing and treating him. He believes the way he was discharged was dishonest and under duress. At the time of discharge he was not aware of the severity of the TBI or PTSD. The medication he was forced to take (Zoloft, Seroquel, Paxil, Clonazepam, and Amtoien) severely impacted his ability to make sound decisions and perform on the job. The applicant's contentions were noted; evidence in the record shows before initiating discharge proceedings, the command ensured the applicant was appropriately counseled about his deficiencies which could lead to separation. The command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier. The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies. As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service. The service record contains no evidence of PTSD or TBI diagnosis. The post-service medical document 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 applicant further contends he served honorably and with distinction, was promoted from E-1 to E-4 during tour in Iraq and put in a leadership role, serving as a squad leader. 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. 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. 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 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. 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 3 June 2018, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBH and PTSD), and post-service accomplishments. Therefore, the board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. The board determined the reentry eligibility (RE) code was proper and equitable and voted not to change it. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / 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 AR20170016443 5