1. Applicant's Name: a. Application Date: 31 July 2018 b. Date Received: 2 August 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 applicant's discharge is both inequitable and improper. This request includes changing the reentry code to RE-1 and restoring rank to E-4. The demotion and UOTH discharge were erroneous and unjust, given that PTSD led to the misconduct. Given the sensitivity of the combat missions and nondisclosure statements, information on experiences are limited. The applicant was awarded two Purple Hearts, but by the protocol set by the command, forbade the applicant from accepting the awards. Although the applicant suffered from the symptoms of PTSD, nightmares and anxiety, the applicant feared the stigma if exposed and hid them. However, in January 2003, a supervisor, SSG S. documented numerous physical signs, personality changes and behavioral indicators typically exhibited in combat veterans suffering from PTSD. The separation authority failed to consider the applicant's quality of service, combat experience and injuries, awards, and that PTSD mitigated the misconduct. 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 active duty records due to the applicant's time of service. Post-service, the VA has diagnosed the applicant with PTSD, Conversion Disorder, Adjustment Disorder with Anxiety, Opioid Dependence, and Major Depressive Disorder. The applicant does not currently have a service-connected rating from the VA. 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 8 May 2019, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of two biochemical tests which were coded RO (Rehabilitation) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan, and the other coded CO (Command Directed or Competence for Duty). These are limited use information as defined in AR 600-85 and are protected evidence because the RO coded test was administered as part of the applicant's rehabilitation program. Use of these information mandate award of an honorable characterization of service. Accordingly, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD). Therefore, 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), and the separation code to JKN. (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-3 / Under Other Than Honorable Conditions b. Date of Discharge: 7 August 2003 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 June 2003 (2) Basis for Separation: The applicant was informed of the following reasons: In that he did, between 8 December 2002 and 6 January 2003, wrongfully used marijuana, in violation of Article 112a, UCMJ. In that he did, between 8 December 2002 and 6 January 2003, wrongfully used cocaine, in violation of Article 112a, UCMJ. In that he did, on 28 March 2003, wrongfully used tetrahydrocannibinol (THC), in violation of Article 112a, UCMJ. In that he did, on 2 April 2003, wrongfully used tetrahydrocannibinol (THC), in violation of Article 112a, UCMJ. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 25 June 2003 (5) Administrative Separation Board: Waived, 25 June 2003 (6) Separation Decision Date / Characterization: 24 July 2003 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 February 2000 / 4 years, 2 months, 17 weeks (extended two months on 25 July 2001) b. Age at Enlistment / Education / GT Score: 23 / 15 years / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 5 months, 14 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (1 October 2001 to 31 January 2002) f. Awards and Decorations: AGCM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for having positive urinalysis results; conduct being disorderly; possessing marijuana; being given a command-directed urinalysis, which tested positive for marijuana and cocaine (on page 34 of separation file); being insubordinate; failing to obey an order; making disloyal statements; and conduct not being in good order and discipline. FG Article 15, dated 6 March 2003, for wrongfully using marijuana between 8 December 2002 and 6 January 2003, wrongfully using cocaine between 8 December 2002 and 6 January 2003, being disorderly on 30 December 2002, and being disrespectful in language towards an NCO on 4 February 2003. The punishment consisted of a reduction to E-3, forfeiture of $764 pay per month for one month, and 45 days of extra duty and restriction. DD Form 2624 (Specimen Custody Document - Drug Testing), dated 15 January 2003, indicates the specimen collected on 6 January 2002 (sic), on a "CO" (Competence for Duty or Command Directed) basis, provided by the applicant, tested positive for "THC" and "Cocaine." DD Form 2624 (Specimen Custody Document - Drug Testing), dated 3 April 2003, indicates the specimen collected on 28 March 2003, on an "IU" (Inspection, Unit) basis, provided by the applicant, tested positive for "THC." DD Form 2624 (Specimen Custody Document - Drug Testing), dated 8 April 2003, indicates the specimen collected on 2 April 2003, on an "RO" (Rehabilitation Testing) basis, provided by the applicant, tested positive for "THC." FG Article 15, dated 2 June 2003, for wrongfully using tetrahydrocannabinol (THC) on two separate occasions on 28 March 2003 and 2 April 2003. The punishment consisted of a reduction to E-1 and forfeiture of $575 pay per month for one month, and 45 days of extra duty. Report of Mental Status Evaluation, dated 21 April 2003, indicates the applicant was psychiatrically cleared to undergo administrative separation. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Vet Center letter, dated 13 January 2005, rendered by a Readjustment Therapist, indicates the applicant had been undergoing evaluation and treatment for chronic and severe PTSD related to his combat experiences in Afghanistan and Iraq in 2002 and 2003. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 31 July 2018, with attorney-authored brief; DD Forms 214 and 215; Kurta Memorandum, dated 25 August 2017, with attachment; Report of Medical Examination, dated 2 February 2000; Permanent Orders (Parachutist Badge); enlistment extension; email, dated 26 March 2016; National Guard & Reserve Service Periods; Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD), dated 1 November 2016, with applicant-authored statement; Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Enrollment, dated 24 January 2003; // counseling statements, dated 27 January 2003, 4 February 2003; Permanent Orders (AGCM); DA Form 4187, dated 11 March 2003; two DA Forms 2624 (Specimen Custody Document - Drug Testing); DA Form 4187, dated 3 June 2003; Report of Mental Status Evaluation, dated 21 April 2003; Report of Medical Examination, dated 25 April 2003; Report of Medical History, dated 25 April 2003; Report of Medical Assessment, dated 23 April 2003; counseling statement, dated 24 April 2003; separation notification memorandum, dated 24 June 2003; commander's report memorandum, dated 24 June 2003; applicant's election of rights, dated 25 June 2003; Vet Center letter, dated 13 January 2005; Family Medicine letter, dated 4 March 2016; supporting statement, dated July 2018; OTSD/MEDCOM Policy Memo, dated 10 April 2012; Report to Congress (NDAA FY 2010, Section 726); and supporting statement (BG (Ret) D.C.B.) 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. 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 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. The service record further reflects that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, paragraph 14- 12c(2), block 26 separation code as "JKK," and block 28, narrative reason for separation as "Misconduct." Therefore and as approved by the separation authority, the following administrative corrections are warranted: a. block 25, separation authority to AR 635-200, Chapter 14-12c; b. block 26, separation code to JKQ; and c. block 28, reason for separation to Misconduct (Serious Offense). 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 record further shows that the characterization of service appears to be improper. The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 2 April 2003, which was coded RO (Rehabilitation) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. There is no indication in the separation file that the command recognized that the "RO" code could not be used as the basis for the separation and the Article 15. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. The record also shows that on 6 January 2003, the applicant was given a "Competence for Duty or Command Directed" (CO) urinalysis and he tested positive for marijuana and cocaine. This is limited use information as defined in AR 600-85 and is protected evidence. Use of this information also mandates award of an honorable characterization of service. There is no indication in the separation file that the command recognized that the "CO" code could not be used as the basis for the separation and the Article 15. Moreover, there is no indication the command believed the urinalysis was improperly coded and there is also no CID report; however, there is a counseling statement that indicate the urinalysis was command-directed because when the command found the applicant was charged with possession of marijuana but that the civilian court dropped the charge, the command directed a urinalysis. If the urinalysis was properly coded CO, as stated on the collection sheet, then the discharge was improperly characterized given the introduction of the limited use evidence in the Chapter paperwork. However, the question whether the urinalysis was properly coded is a question of fact for the Army Discharge Review Board to determine given the contrary conclusions that could be drawn by the command's treating the urinalysis as though it was not limited use evidence. The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded. The applicant's contentions regarding his untreated behavioral health issues, involving a chronic and severe PTSD, which contributed to his misconduct, 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 the 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 applicant requests to change the reason and the reentry code 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 is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Additionally, 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 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant also requests that his rank be restored. The Army Discharge Review Board is not empowered to restore former Service member's grade or rank. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in his discharge, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. The discharge was not consistent with the procedural and substantive requirements of the regulation, was not within the discretion of the separation authority and that the applicant was not provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 8 May 2019, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of two biochemical tests which were coded RO (Rehabilitation) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan, and the other coded CO (Command Directed or Competence for Duty). These are limited use information as defined in AR 600-85 and are protected evidence because the RO coded test was administered as part of the applicant's rehabilitation program. Use of these information mandate award of an honorable characterization of service. Accordingly, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD). Therefore, 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), and the separation code to JKN. 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 / 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 AR20180015763 4