1. Applicant's Name: a. Application Date: 1 March 2018 b. Date Received: 23 March 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, he would like the record to reflect he was not a bad Soldier, but was a person who just ran into some problems with several issues. The applicant states, he performed to the best of his abilities even though the outcome was not of a positive one. The applicant understands and paid the price for his shortcomings, but believes he has learned his lesson and should have been afforded the opportunity in service to rectify the situations he caused. The applicant knows he could have been able to be a better Soldier and a better person. The applicant states, he is a testament that with proper care and counseling one can turn themselves around for the better. The applicant provides letters with his application, which reflects he is a better person and if he had the opportunity to do things over, he would be a stellar Soldier once again. The applicant states, he was too young at the time and would stay up past his curfew and was quite unhealthy despite being young. The applicant would often make excuses about his reoccurring bad knee during PT or personal smoking section. The applicant regrets his usage of drugs and did not do so in order to get out of the Army sooner. Since his discharge, he has been in A.A and has learned better ways to cope with anxiety of having ADHD and slight PTSD. He had low self-esteem in school, but it all became better when he finally decided to make a change. The applicant has been drug free and out of jail for 14 months and is doing much better than he was five years ago. The applicant states and upgrade would allow him to use his GI Bill and VA benefits. The applicant further details his contentions in a self-authored statement provided with his application. 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 BH diagnoses. VA medical records contain only DOD content. The applicant is not service-connected from the VA. 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 18 November 2020, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, 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 general under honorable conditions. (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 / Under Other Than Honorable Conditions b. Date of Discharge: 18 September 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 August 2009 (2) Basis for Separation: Under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense, the applicant was informed of the following reasons: He tested positive for cocaine on a urinalysis tests and he had repeatedly failed to show up at formations. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 28 August 2009 (5) Administrative Separation Board: On 26 August 2009, the applicant unconditionally waived consideration of his case before an administrative separation board. (6) Separation Decision Date / Characterization: On 10 September 2009 ,the separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 September 2007 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 17 / GED / 112 c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B10, Infantryman / 1 year, 11 months, 15 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (4 August 2008 - 16 March 2009) f. Awards and Decorations: ARCOM, NDSM, ICM-CS, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 8 June 2009, for wrongfully using cocaine (between 15 and 21 May 2009). The punishment consisted of a forfeiture of $699 pay per month for two months; extra duty and restriction for 45 days; and, a verbal reprimand. Mental Status Evaluation, dated 12 June 2009, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with clear a thinking process. Personnel Action form, reflects the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 28 August 2009. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 15 days (CMA, 28 August 2009 - 12 September 2009) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; four third party letters; Congressional Inquiry; DD Form 214; case separation packet; copies of his military service records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has been drug free and out of jail for 14 months and is doing much better than he was five years ago. 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. 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 or general (under honorable conditions). The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. 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 marred the quality of his service. 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 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 young at the time of the discharge. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The applicant contends the he was suffering from anxiety, ADHD and mild PTSD. However, the service record contains no evidence of any diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. Further, the record reflects that on 12 June 2009, the applicant underwent a mental status evaluation ,which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The third party statements provided with the application speak highly of the applicant; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 18 November 2020, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, 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 general under honorable conditions. 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 AR20180003982 3