1. Applicant's Name: a. Application Date: 30 October 2017 b. Date Received: 2 November 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, after serving honorably for more than three years, the applicant began suffering from marriage problems that affected judgement. The applicant was unable to cope with both the stress of a failing marriage and military obligations, which led to a substance abuse problem. Until the unfortunate situation, the applicant served honorably. The applicant received an NDSM, GWOTSM, ASR, and completed the Combat Lifesaver Course. The applicant's prior service include an honorable discharge on 30 June 2000. 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 due to the period of service, the applicant's active duty records are unavailable. The applicant does not currently have any VA records for review. In summary, the applicant does 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 23 August 2019, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service to include combat service, homelessness, and a prior period of honorable service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. 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 (Drug Abuse) / AR 635- 200, Paragraph 14-12c(2) / JKK / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 30 September 2004 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 August 2004 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used cocaine and committed larceny of property of AAFES. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 30 July 2004 (5) Administrative Separation Board: Waived pursuant to a Pretrial Agreement (Offer to Plead Guilty), dated 30 July 2004 (6) Separation Decision Date / Characterization: 17 September 2004 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 January 2002 / 3 years per enlistment with RA, upon being discharged from the ARNG (Note that the applicant's DD Form 214 has an incorrect "Date entered AD This Period" as an RA Soldier) b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 9 months, 20 days (Note that DD Form 214 at Block 12c "Net Active Service This Period" should read 2 years, 8 months, 26 days) d. Prior Service / Characterizations: ARNG (10 December 1999 to 13 March 2000) / NA IADT (14 March 2000 to 30 June 2000) / HD ARNG (1 July 2000 to 19 September 2000) / NA MOB (20 September 2000 to 6 March 2001) / HD ARNG (7 March 2001 to 3 January 2002) / HD e. Overseas Service / Combat Service: SWA (5 October 2000 to 13 February 2001) / None f. Awards and Decorations: NDSM; GWOTSM; AFEM; AFRM-M DEV; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for testing positive for cocaine on two separate occasions. FG Article 15, dated 21 April 2004, for wrongfully using cocaine between 9 February 2004 and 9 March 2004. The punishment consisted of a reduction to E-2, forfeiture of $669 pay per month for two months, and 45 days of extra duty. Pretrial Agreement (Offer to Plead Guilty), dated 30 July 2004, in pertinent part, shows that while charges of wrongfully using cocaine and committing larceny of AAFES property were preferred against the applicant, the applicant offered to plead guilty to the charges in a summary court-martial in exchange for accepting an UOTHC discharge and waiving his right to demand an administrative separation board, and waiving submission of clemency matters. The agreement also included that the agreement would not be affected by dismissal of the charge and its specification or on motion of either party, or by the summary court-martial. The offer to plead guilty was accepted on 2 August 2004, and the charges were referred to a summary court-martial. Report of Result of Trial and its associated documents, reports that on 5 August 2004, in a summary court-martial, the applicant was found guilty of Charge I, violation of Article 112a, UCMJ, for wrongfully using cocaine between 5 April 2004 and 19 April 2004, and not guilty of Charge II, violation of Article 121, larceny of gasoline from AAFES, of a value of $10 on 10 May 2004. The sentence consisted of 30 days of confinement. Report of Mental Status Evaluation, dated 23 June 2004, provided no behavioral health diagnosis. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 14 May 2004, indicates the examiner noted behavioral health issues (depression). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 30 October 2017; DD Form 214; and a hand-written statement authored by the applicant. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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, 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 under other than honorable conditions discharge to honorable. 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 the serious incidents of misconduct, 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 contends that he was having family issues that affected his behavior and judgement, and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. In consideration of the applicant's service accomplishments and quality of his service prior to these incidents, the Board can find that his accomplishments and complete period of service were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. Although the applicant did not present any behavioral health issues, a careful review of the available record indicates the applicant's behavioral health issues symptoms existed. 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. 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 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 23 August 2019, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service to include combat service, homelessness, and a prior period of honorable service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. 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: General Under Honorable Conditions 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 AR20170019450 1