1. Applicant's Name: a. Application Date: 23 September 2018 b. Date Received: 16 October 2018 c. Representative: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in pertinent part and in effect, the medical evaluation was negligent-it did not diagnose the applicant's PTSD and anxiety condition. The applicant was not diagnosed properly, prior to separation proceedings. The discharge was adjudicated as a Soldier who did not have extenuating mental or physical circumstances. The PTSD is attributed to serving in OEF (Afghanistan). The punishment the applicant suffered related to PTSD and the physical injuries impacted life daily in a negative way. The discharge is inequitable because it does not commensurate with the UCMJ infraction. The characterization of current service would be understandable if the applicant refused just one mission, deserted, or shirked duties. The applicant has suffered substance abuse problems for the last six years, compounded by the inability to establish a career with the current discharge. The applicant served a full combat tour. Due to the participation in Operation Enduring Freedom, the applicant has PTSD, including several service-related physical injuries. The applicant was a good Soldier as demonstrated by exemplary performance throughout the deployment. The applicant fought through anxiety, fear, and panic to perform the mission under combat conditions. Outside of substance abuse, the applicant had zero disciplinary or performance issues during the entire military career. 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 Cannabis and Alcohol Abuse, Depressive Disorder NOS, and Acute Reaction to Stress. The applicant provided a civilian evaluation, dated June 2014, with a diagnosis of PTSD. In summary, the applicant had 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 1 February 2019, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's quality of service, to include combat 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 general under honorable conditions 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: 27 March 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 December 2011 (2) Basis for Separation: The applicant was informed of the following reasons: He wrongfully used marijuana between 19 December 2010 and 19 January 2011. He also wrongfully used marijuana between 9 August 2011 and 9 September 2011. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 20 December and 24 February 2012 (5) Administrative Separation Board: 24 February 2012, unconditionally waived (6) Separation Decision Date / Characterization: 26 February 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 October 2009 / 5 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-3 / 91D10, Machinist / 2 years, 5 months, 23 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Alaska, SWA / Afghanistan (6 May 2011 to 28 February 2012) f. Awards and Decorations: NDSM; ACM-2CS; GWOTSM; ASR; NATO MDL; CAB-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statement for testing positive during a urinalysis. An electronic copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 9 February 2011, indicates the specimen collected on 19 January 2011, on an "IU" (Inspection, Unit) basis, provided by the applicant, tested positive for "THC." FG Article 15, dated 14 April 2011, for wrongfully using marijuana between 19 December 2010 and 19 January 2011. The punishment consisted of a reduction to E-1, forfeiture of $733 pay per month for two months, and 45 days of extra duty. An electronic copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 3 October 2011, indicates the specimen collected on 9 September 2011, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "THC." Report of Mental Status Evaluation, dated 20 November 2011, indicates the applicant wanted to be discharged from the military and that he was not motivated to attend treatment. FG Article 15, dated 13 December 2011, for wrongfully using marijuana between 20 August 2011 and 9 September 2011. The punishment consisted of forfeiture of $734 for one month and 45 days of extra duty. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 18 November 2011, indicates the applicant and the examiner noted behavioral health issues. Applicant' documentary evidence: Licensed Clinical Psychologist Psychological Report, dated 26 June 2014, reports that based interviewing and testing the applicant, he meets criteria for following DSM 5 diagnoses: 309.81 PTSD; 311 Other Specified Depressive Disorder, criteria for major depressive disorder met; Ongoing rule-out of Schizoaffective Disorderly, Bipolar Type; 303.90 Alcohol Use Disorder, Moderate; and 304.30 Cannabis Use Disorder, Moderate. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 23 September 2018, with representative-authored petition; DD Form 214; Psychological Report, dated 26 June 2014, with test results; extract copy of 10 USC § 1177; Report of Mental Status Evaluation, dated 20 November 2011; Report of Medical History, dated 6 October 2011; Report of Medical Examination, dated 18 November 2011; two Congressional correspondence, dated 30 August 2012, and 4 November 2015; Police Record Check; Ordnance School diploma; CAB Orders; NATO MDL certificate; two Article 15 actions, dated 14 April 2011, and 13 December 2011; GCMCA decision memorandum, dated 26 February 2012; memorandum, dated 21 December 2011; and discharge orders and its amendment. 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 general (under honorable conditions) or 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 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 he was not diagnosed properly, prior to his separation proceedings. 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, 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 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 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's quality of service, to include combat 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 general under honorable conditions 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: General Under Honorable Conditions 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 AR20180013287 1