1. Applicant's Name: a Application Date: 15 May 2018 b. Date Received: 16 May 2018 c. Counsel: None d Previous Records Review: 18 December 2013, AR20130010685 Previous Personal Appearance Hearing: 16 November 2016, AR20160007543 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in pertinent and in effect, new evidence provided by VA shows a diagnosis of behavioral health issues concurrent with PTSD resulting from a combat tour that impaired the applicant's abilities. 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 separation from the Army. A review of electronic military medical records indicated the SM had a diagnosis of Opioid Abuse, however, was not referred to ASAP. Post-service, the SM has a 40% service connected rating for an Anxiety Disorder Unspecified. In summary, the SM's diagnosis of Anxiety can be associated with substance use and therefore 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 characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. post-service diagnosis of OBH), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. 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 (Minor Infractions) / AR 635-200, Paragraph 14-12a / JKN / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 14 January 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 November 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 29 July 2010, he wrongfully used Oxymorphone, a Schedule II controlled substance, violating Article 112a, UCMJ. On 15 June 2015, he failed to go to his appointed place of duty, to wit: 0830 formation, violating Article 86, UCMJ. On 2 September 2010, without authority, he failed to go to his appointed place of duty at the prescribed time, to wit: 0645 accountability formation, violating Article 86, UCMJ. On 19 August 2010, he was derelict in the performance of his duties in that he willfully failed to have his uniform cleaned and pressed for barracks inspection, violating Article 92, UCMJ. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 10 November 2010, and 3 January 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: In an undated memorandum / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 November 2006 / 6 years b. Age at Enlistment / Education / GT Score: 18 / GED / 119 c. Highest Grade Achieved / MOS / Total Service: E-4 / 15T10, UH-60 Helicopter Repairer / 4 years, 1 month, 29 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Japan, SWA / Iraq (8 May 2007 to 29 July 2008) f. Awards and Decorations: ARCOM; AAM-2; AGCM; NDSM; ICM-CS; GWOTSM; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for failing to go to his appointed place of duty at the prescribed time on several occasions; disobeying lawful orders; disrespecting and being insubordinate towards the battalion first sergeant; and having a positive urinalysis. An electronic copy of DD Form 2624, dated 10 September 2010, indicates the specimen collected on 29 July 2010, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for Oxymorphone. FG Article 15, dated 27 October 2010, for wrongfully using Oxymorphone on 29 July 2010, failing to go to his appointed place of duty at the prescribed time on two separate occasions on 2 September 2010, and 15 June 2010, and being derelict in performance of duties on 19 August 2010. The punishment imposed is NIF; however, ERB shows he was reduced to E-1 on 27 October 2010. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: page three of VA rating decision indicates the applicant was assigned 30 percent for behavioral health issues, an unspecified anxiety disorder with panic attack specifier with insomnia disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 15 May 2018, and page 3 of VA rating decision. 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 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, paragraph 14-12c, 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. The regulation further identifies the SPD code of "JKN" as the appropriate code assigned to discharges under the provisions of AR 635-200, Chapter 14, Paragraph 14-12a, Misconduct (Minor Infractions), and a reentry 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 his general (under honorable conditions) discharge to honorable. The applicant's available record of service, and the issues and document 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 abusing illegal drugs and other 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 sufficient evidence that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant's contentions regarding his behavioral health issues including PTSD, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. 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. Of additional note is that at a personal appearance hearing on 16 November 2016 (AR20160007543), the Board had determined the narrative reason for his separation was improper, and therefore, directed the issuance of a new DD Form 214 to reflect a change to the separation authority to "AR 635-200, Paragraph 14-12a," the narrative reason for separation to "Misconduct (Minor Infractions)," and the separation code to "JKN," but no change to reentry code. Current record does not contain a copy of a new DD Form 214 reflecting the changes. 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): 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 characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post- service accomplishments, and the circumstances surrounding the discharge (i.e. post-service diagnosis of OBH), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 11. 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 AR20180006661 5