1. Applicant's Name: a. Application Date: 6 October 2017 b. Date Received: 10 October 2017 c. Counsel: 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 through counsel seeks relief contending, in effect, was treated for anxiety and depression and prescribed an anti-depressant while deployed. The applicant's symptoms worsened upon redeployment and disclosed depression and PTSD on the Post Deployment Health Assessment. The applicant self-referred to ASAP for substance abuse. The government used this limited use evidence against the applicant at an Article 15, UCMJ and also when they administratively separated the applicant for a serious offense. The applicant requests restoration of rank to E-4. The applicant suffered from serious mental health conditions such as anxiety, depression, and insomnia and most likely PTSD as a result of a combat deployment in Iraq. The applicant therefore used marijuana to self-medicate. 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), notes indicate no active duty records due to the period of service. The VA has diagnosed the applicant with Anxiety Disorder NOS. The applicant does not currently have a diagnosis of PTSD. In summary, the applicant did not have 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 13 June 2019, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of a biochemical test after the applicant self-enrolled into the Army Substance Abuse Program (ASAP). The inclusion of the test administered after the applicant's self-referral is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 17 May 2005 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 26 April 2005 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; he wrongfully used marijuana between (19 January 2005 and 2 February 2005). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 29 April 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 5 May 2005 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 June 2001 / 4 years b. Age at Enlistment / Education / GT Score: 18 years / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11C10, Indirect Fire Infantryman / 3 years, 10 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Italy / None f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A positive urinalysis test coded IR (Inspection Random), dated 2 February 2005, for THC. CID Report of Investigation, dated 22 February 2005, revealed that the applicant was under investigation for wrongful possession and wrongful use of marijuana. FG Article 15, dated 6 April 2005, for wrongful use of marijuana between (19 January 2005 and 2 February 2005); reduction to PV2 / E-2; forfeiture of $692 pay for two months, $173 of that (suspended), extra duty and restriction for 30 days. Report of Mental Status Evaluation, dated 18 April 2005, relates the applicant was mentally responsible and met retention requirements of Chapter 3, AR 40-501. The SM is psychiatrically cleared for any administrative action deemed appropriate by Command. The applicant received a negative counseling statement for a positive drug test; and several monthly / performance counseling statements. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's letter; and attorney's brief (nine pages). 6. POST SERVICE ACCOMPLISHMENTS: The applicant states since leaving the armed forces, he obtained an Associate's Degree in Nuclear Medicine from the Danville Area Community College and worked at a cancer center for the last several years. 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 states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 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 shows the government introduced into the discharge packet an Army Substance Abuse Program (ASAP) Enrollment Form, indicates the applicant self-referred on 18 January 2005. Also, a memorandum by the ASAP Clinical Director substantiates the applicant self- referred to ASAP, these documents were a part of the applicant's treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. Of note, in a memorandum, the JAG Senior Defense Counsel stated the applicant's separation was based on Limited Use evidence and he should therefore receive no less than an honorable characterization of service. Additionally, the applicant's counsel states in his brief, therapists determined that his symptoms were subthreshold and did not reach the level of a PTSD diagnosis. Further, the applicant requests a change to the narrative reason for separation. AR 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense). The regulation further stipulates that no deviation is authorized. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. The applicant contends, his CIB and his combat deployment is not reflected on his DD Form 214. In a counseling statement, dated 22 February 2005, the applicant was informed he would not be deploying with the unit because he had a positive urinalysis test. The applicant also requests restoration of his rank to E-4. The Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in his discharge, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. Finally, the characterization of service was not consistent with the procedural and substantive requirements of the regulation, was not within the discretion of the separation authority, and the applicant was not provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 13 June 2019, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of a biochemical test after the applicant self-enrolled into the Army Substance Abuse Program (ASAP). The inclusion of the test administered after the applicant's self-referral is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: 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 AR20170017444 1