1. Applicant's Name: a. Application Date: 24 October 2018 b. Date Received: 24 October 2018 c. Previous Records Review: 28 March 2018, AR20180001538 d. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under 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 applicant's documented PTSD and TBI were factors that mitigate the misconduct. Further, the applicant's PTSD and TBI were not given liberal consideration, nor were they appropriately considered during the records review of the previous application. The discharge with its narrative reason of drug abuse is both improper and inequitable-it is improper because the basis for separation was an Article 15 that relied on a urinalysis results that should have been precluded according to DoD policy on limited use, and inequitable because of the mitigating factors that includes dealing with extraordinary family and personal issues. (The counsel detailed the circumstances and events surrounding the applicant's deployments and experiences, family issues involving the wife's suicide, the father's death, the second wife's infidelity, and the events that led to discharge.) Since discharge, the applicant earned an Associate's Degree and worked for an automotive repair before deciding to pursue a career in the medical field. The applicant obtained a paramedic certification and worked as a paramedic. It inspired the applicant to attend nursing school, so the applicant enrolled in a university with an anticipation of graduating with a Bachelor of Science in Nursing in December 2020, and has celebrated five years of sobriety. The applicant remarried, traveled to DC, met with senators and representatives, and discussed creating a bill for treating veterans with PTSD and TBI issues and improving the Fairness for Veterans Act. The applicant has become a mentor for fellow veterans in treatment courts. 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 Occupational Problem, Adjustment Disorder with Anxious Mood, Adjustment Reaction NOS, Substance Induced Psychosis, Meth Use Severe, Mood Disorder NOS, Antisocial Personality traits, and PTSD. The applicant is 50% service-connected for PTSD from the VA. The VA has diagnosed the applicant with PTSD, Polysubstance Dependence, Personality traits Cluster B, and Mood Disorder NOS. In summary, due to the basis of separation not being in file, there is insufficient evidence to determine if the applicant's BH diagnoses are mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 20 May 2019, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of PTSD), severe family matters, homelessness, valor, a prior period of honorable service, post-service accomplishments, 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 / General (Under Honorable Conditions) b. Date of Discharge: 9 October 2014 c. Separation Facts: (NIF; however, based on the applicant's limited documentary evidence) (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: 15 July 2014, board recommended General (Under Honorable Conditions) discharge (6) Separation Decision Date / Characterization: 17 September 2014 / General (Under Honorable Conditions) (The GCMCA, upon reviewing the Medical Evaluation Board, found that the applicant's medical condition was not a cause or substantial contributing cause of his misconduct, and did not warrant disability processing. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 July 2011 / 5 years b. Age at Enlistment / Education / GT Score: 30 / 13 years / 122 c. Highest Grade Achieved / MOS / Total Service: E-6 / 18D3V 5W, Special Forces Medical Sergeant and 11B20, Infantryman / 11 years, 9 months, 10 days d. Prior Service / Characterizations: RA (30 January 2002 to 31 October 2005) / HD RA (1 November 2005 to 15 September 2006) / HD RA (28 September 2007 to 4 July 2011) / HD e. Overseas Service / Combat Service: SWA / Afghanistan (7 January 2005 to 7 April 2005), Iraq (5 October 2005 to 9 January 2006) f. Awards and Decorations: PH; ARCOM-V DEV; AAM-2; AGCM-3; NDSM; ACM-A; ICM-CS; GWOTEM; GWOTSM; ASR; CIB g. Performance Ratings: 1 June 2009 thru 31 August 2012, Among the Best 1 September 2012 thru 28 March 2013, Fully Capable 29 March 2013 thru 30 September 2013, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 28 August 2013, for behaving with disrespect towards MAJ J.G, his superior commissioned officer from 4 August 2013 to 6 August 2013 (note continuation sheet NIF; however, according to applicant's documentary evidence: for failing to obey a lawful general regulation on 3 February 2014 x 2). The punishment consisted of forfeiture of $767 pay (suspended), 14 days of extra duty and restriction, and an oral reprimand. Record of Supplementary Action under Article 15, UCMJ, dated 19 February 2014, vacated the punishment of forfeiture of $769 imposed on 28 August 2013, based on the applicant admitting to wrongfully using methamphetamine between 29 August 2013 and 3 February 2014. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Medical Record, dated 13 January 2014, shows primary behavioral health issues as "Adjustment Disorder with Anxious Mood." Medical Evaluation Board Narrative Summary, dated 29 July 2014, provides a behavioral health diagnosis of PTSD, stimulant use disorder, and other specified personality disorder. Memorandum, dated 5 August 2014, rendered by a staff psychiatrist, states, in pertinent part, that the applicant met the full criteria for PTSD from his experience in the Army, and that he continued to have signs and symptoms of PTSD that prevented him from being able to function in any capacity in the military. A referral report rendered by a licensed clinical psychologist indicates that the applicant, who was determined 50 percent service-connected for PTSD, was referred for an opinion regarding his diagnosis of PTSD versus personality disorder caused by drug use. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 28 October 2018; DD Form 214; counsel-cover letter with brief and partial separation file, and list of attachments labeled from Exhibit A through Exhibit P. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, that since his discharge, he earned an Associate's Degree and worked for an automotive repair before deciding to pursue a career in medical field; he obtained his paramedic certification and worked as a paramedic- such inspired him to attend nursing school, so he enrolled in a university with an anticipation of graduating with a Bachelor of Science in Nursing in December 2020, and he has celebrated five years of sobriety; he remarried, traveled to DC and met with senators and representatives, and discussed creating a bill for treating veterans with PTSD and TBI issues and improving the Fairness for Veterans Act; and he has become a mentor for fellow veterans in treatment courts. 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 general (under 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. After carefully examining the applicant's available military records, there are insufficient mitigating factors to make a determination upon the applicant's quality of service and the merit of his issues. The applicant's record is void of the documentary evidence of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, based on the applicant's limited separation record and the applicant's record containing a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that was digitally authenticated by the applicant's signature, they confirm that the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c(2), by reason of Misconduct (Drug Abuse), with a characterization of service of general (under honorable conditions). And they confirm 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. Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. The applicant contends the discharge was improper, because limited use information was used as basis for the applicant's discharge, and inequitable, because of mitigating factors, such as the applicant suffering from PTSD and TBI, and dealing with extraordinary family and personal issues. 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. Moreover, there is no documentary evidence of the applicant's enrollment in ASAP. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he was unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. Insofar as the applicant suffering from PTSD and TBI, which were contributing factor to his misconduct, 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 the 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. Based on the available record, 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): Memorandum In Support - 2 Pages Administrative Separation Memorandum - 5 Pages Report of Proceedings - 5 Pages b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 20 May 2019, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of PTSD), severe family matters, homelessness, valor, a prior period of honorable service, post-service accomplishments, 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 11. 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 AR20180013618 1