1. Applicant's Name: a. Application Date: 10 September 2018 b. Date Received: 27 September 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade an under other than honorable conditions discharge to honorable and to change the narrative reason for discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the Military's significant policy changes and its directives regarding PTSD compel an upgrade of the applicant's discharge status to honorable. An upgrade to honorable promotes equity in view of the applicant's exemplary military service and post-service conduct. The applicant was promoted to E-6/SSG with an exemplary service record and no disciplinary issues. The applicant received numerous awards and decorations and the NCOERs demonstrate exemplary service and unblemished record prior to deployment to a hostile fire zone in Kosovo. The applicant began to suffer from PTSD symptoms while deployed to Kosovo and these PTSD symptoms with anxiety and depression worsened upon return-the applicant did not know how to deal with them, nor was mental health treatment accepted or suggested during that period. The applicant contemplated suicide and began to self-medicate. Subsequently and although testing positive for cocaine, the applicant also used marijuana to numb these feelings and received a second Article 15 punishment. The applicant's PTSD symptoms intensified after discharge and was admitted to an inpatient psychiatric unit in 2006 and 2008. The applicant attempted suicide in July 2012 and in September 2012, spent over two months in inpatient psychiatric counseling and substance abuse treatment. The VA has diagnosed the applicant with PTSD due to military experiences, and mood disorder NOS, anxiety, and behavioral outbursts. The applicant continued treatment with VA until in 2015 until the applicant informed that the current discharge status prevented receipt of further treatment, causing the applicant to go into debt for receiving treatment from non-VA sources. Upon starting treatment, the applicant began life around. The applicant has since worked with Veterans Assembled Electronics, LLC (VAe), and provides training to veterans and assisting them with their transition to civilian life. Although the applicant continues to suffer from PTSD, the applicant understands now the problems and its symptoms. The current "liberal consideration" standard supports an upgrade. "When compared to similarly situated individuals under today's military standards," providing "for substantial pre- and post-deployment screenings and screenings during separation proceedings to identify signs of PTSD," including "less prejudicial discharges based on the same, there can be no doubt that [the applicant was] the victim of injustice." 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 diagnoses of Bipolar Disorder, PTSD, and Alcohol Dependence. In summary, the applicant had a BH diagnosis that was mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 1 February 2019, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, a prior period of honorable service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD) 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 honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. (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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 11 September 2003 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 May 2003 (2) Basis for Separation: The applicant tested positive for cocaine during a drug screen. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 27 May 2003 and 16 July 2003 (5) Administrative Separation Board: Unconditionally waived, 16 July 2003 (6) Separation Decision Date / Characterization: 6 August 2003 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 January 2000 / 6 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 126 c. Highest Grade Achieved / MOS / Total Service: E-6 / 35E1S, B5 Radio and Communications Security (COMSEC) Repairer / 10 years, 9 days d. Prior Service / Characterizations: RA (3 September 1993 to 22 January 1997) / HD RA (23 January 1997 to 26 January 2000) / HD e. Overseas Service / Combat Service: Korea, Germany, Kosovo / Kosovo (NIF) (11 September 2002 to 7 March 2003, per DA Form 2-1) f. Awards and Decorations: ARCOM-2; AAM; AGCM-3; NDSM-2; KCM; HSM; NCOPDR-2; ASR; OSR-2; NATO MDL; ASUA g. Performance Ratings: Five NCOERs rendered during period of service under current review: May 1999 to April 2000, Among the Best May 2000 to February 2001, Among the Best March 2001 to February 2002, Among the Best March 2002 to August 2002, Among the Best September 2002 to July 2003, RFC, Marginal h. Disciplinary Action(s) / Evidentiary Record: DD Form 2624 (Specimen Custody Document - Drug Testing), dated 25 April 2003, indicates the specimen collected on 21 April 2003, on an "IU" (Inspection, Unit) basis, provided by the applicant, tested positive for "Cocaine." Mental Status Evaluation, dated 22 May 2003, indicates the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. FG Article 15, dated 27 May 2003, for wrongfully using cocaine between 17 April 2003 and 21 April 2003. The punishment consisted of a reduction to E-5, forfeiture of $1,075 pay per month for two months, and 45 days of extra duty. CID Report, dated 2 June 2003, indicates the applicant was the subject of an investigation for wrongful use of cocaine. DD Form 2624 (Specimen Custody Document - Drug Testing), dated 7 July 2003, indicates the specimen collected on 30 June 2003, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "THC." FG Article 15, dated 18 July 2003, for wrongfully using marijuana between 1 June 2003 and 30 June 2003. The punishment consisted of a reduction to E-4, forfeiture of $912 pay per month for two months, and 45 days of extra duty. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence (note that his voluminous medical records indicate diagnoses and treatment for PTSD): West Haven "Compensation and Pension Exam Report," dated 7 December 2012 (Page 40 of Print C&P Final Report), reflects "Diagnosis #1" as "309.81 PTSD" and "Diagnosis #2" as "296.80 Bipolar Disorder NOS." Discharge Summary, dated 18 September 2012 (page 52 of Discharge Summaries), reflects "Axis I" diagnoses as "Mood disorder NOS, r/o Bipolar disorder, PTSD, and alcohol dependence." Medical Record, dated 19 October 2012 (Progress Notes at page 267 or 268 of "AdditionalInfo-3.pdf), indicates the applicant had "a diagnosis of Post Traumatic Stress diagnosed after his experiences in the military service, and mood disorder NOS, anxiety, and behavioral outbursts, for which he [was] receiving treatment as an inpatient" at the West Haven VA. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 10 September 2018; Appointment of Individual as Claimant's Representative, dated 7 September 2018; and DD Form 214. Additional evidence: Attorney cover letters, dated 10 September 2018 and 28 November 2018, with "Table of Contents" with listing of attachments as Exhibit A through Exhibit O. 6. POST SERVICE ACCOMPLISHMENTS: The attorney-authored brief states, in effect, the applicant is currently employed with Veterans Assembled Electronics, LLC (VAe), where he provides training to veterans and assisting them with their transition to civilian life. 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 to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. 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 an NCO, had the duty to support and abide by the Army's drug policies. By the 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 the discharge was unjust because when compared to similarly situated individuals under today's military standards, providing for substantial pre- and post-deployment screenings and screenings during separation proceedings to identify signs of PTSD including less prejudicial discharges based on the same, there can be no doubt that the applicant was the victim of injustice. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. The applicant's contentions regarding his behavioral health issues which involved being diagnosed with PTSD, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder 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. In consideration of the applicant's service accomplishments and quality of his service prior to these incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization 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 requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c(2) is "Misconduct (Drug Abuse)," and the separation code is JKK. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 1 February 2019, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, a prior period of honorable service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD) 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 honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / RE-3 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 AR20180012570 2