1. Applicant's Name: a. Application Date: 15 August 2018 b. Date Received: 23 August 2018 c. Counsel: 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 part and in effect, PTSD and TBI were confirmed by VA, and private medical professionals also confirmed a TBI. The applicant's first enlistment was exemplary. PTSD diagnosed from the first enlistment resulted from numerous major combat operations and firefights and was aggravated during a second tour of duty due to sustaining a TBI during blasts from an IED at close range that caused a serious head wound in 2004. The applicant's service and combat records were outstanding-the applicant received numerous awards, however the current discharge is shameful, deprives the applicant of several benefits, and limits the applicant from creating a better life. Upon returning to Germany in 2005, the applicant began showing many symptoms of PTSD and neurocognitive disorder due to TBI. The applicant began drinking excessively to cope with the symptoms and was assigned to counseling. The symptoms intensified and the substance abuse issues also worsened, leading to several emergency hospital visits due to suicidal ideations, memory loss, hallucinations, and insomnia. Despite the serious and persistent mental issues and a confirmed PTSD, the applicant reenlisted and was deployed to Afghanistan. The applicant participated in many enemy skirmishes and experienced numerous explosions. Upon returning to Fort Bragg, the PTSD and TBI symptoms further intensified, which led to testing positive for cocaine and ultimately was discharged. The discharge was unjust and in error because the applicant was clearly suffering from the symptoms of PTSD and TBI. The applicant is a victim of PTSD and TBI and has to work to overcome it every day- the condition both mitigates and outweighs the current discharge. The VA has determined that the applicant is 70 percent disabled from the "'residuals of traumatic brain injury'" with "PTSD and major depressive disorder." 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 the indicates applicant was diagnosed with Alcohol Dependence, Dysthymia and Major Depressive Disorder (MDD) while on active duty. The applicant-submitted medical documentation indicates that the applicant has been diagnosed with PTSD and Rule out Neurocognitive Disorder due to TBI. Post-service, the VA indicates the following BH diagnoses: PTSD, MDD, TBI history, Cannabis Dependence, and history of Alcohol/Cocaine/Nicotine Dependence. VA records indicate the applicant is 70% service-connected for 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 25 January 2019, and by a 4-1 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. in-service and post-service diagnosis of PTSD and OBH) 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: 28 June 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 May 2011 (2) Basis for Separation: The applicant tested positive for use of cocaine on 26 January 2011. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 24 May 2011 (sic) (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 June 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 February 2009 / 3 years, 2 weeks b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-5 / 21B10, Combat Engineer / 5 years, 4 months, 17 days d. Prior Service / Characterizations: RA (10 July 2003 to 9 July 2006) / HD USAR (10 July 2006 to 11 February 2009) / NA e. Overseas Service / Combat Service: Germany, SWA / Iraq (14 February 2004 to 20 March 2005), Afghanistan (8 December 2009 to 13 December 2010) f. Awards and Decorations: ARCOM-2; AAM-2; NDSM; GWOTEM; GWOTSM; ACM-CS; ICM-CS; ASR; OSR-2; NATO MDL; CAB g. Performance Ratings: One NCOER: 1 December 2010 thru 14 March 2011, Marginal h. Disciplinary Action(s) / Evidentiary Record: An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 2 February 2011, indicates the specimen collected on 26 January 2011, on an "IU" (Inspection, Unit) basis, provided by the applicant, tested positive for "Cocaine." Negative counseling statements for testing positive for cocaine during a urinalysis; FG Article 15, dated 16 March 2011, for wrongfully using cocaine between 20 January 2011 and 26 January 2011. The punishment consisted of a reduction to E-4, forfeiture of $1,115 pay per month for two months, and 45 days of extra duty and restriction. Report of Behavioral Health Evaluation, dated 24 March 2011, indicates the applicant was psychological cleared for any administrative action deemed appropriate by his command. i. Lost Time / Mode of Return: j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 6 April 2011, indicates the examiner noted the applicant had a history of depression diagnosis. Health Record, dated 6 April 2011, lists medical problems, in pertinent part, as being screened for TBI and major depression, single episode. The applicant's documentary evidence at page 36 of his application, "Psychological Report" rendered by a licensed psychologist, reflects diagnosis as "Primary: 309.81 Posttraumatic Stress Disorder" and "Secondary Rule Out: 294.11 Neurocognitive Disorder Due to Traumatic Brain Injury." The report further indicated (at page 37) that overall, the applicant "presents in high distress with severe posttraumatic stress disorder," and that it was "recommended that he continue treatment focusing on reduction of posttraumatic stress disorder symptoms." VA letter, dated 4 June 2014, and VA Rating Decision, dated 6 May 2015, indicate the applicant was granted 70 percent evaluation for service-connected Posttraumatic stress disorder and major depressive disorder with alcohol dependence." Discharge Summaries (at page 77 of application), dated 6 June 2014, reflect diagnoses as "Post Traumatic Stress Disorder, Severe; Major depressive disorder, as a progression of PTSD; TBI likely; Alcohol Use Disorder; Cocaine Use Disorder; and Cannabis Use Disorder." Progress Notes (at page 81), dated 2 October 2006, indicate a diagnoses of "Adjustment disorder with depressed mood; Alcohol and Cannabis dependence disorder; Alcohol intoxication; and R/O PTSD." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge) and DD Form 149 (Application for Correction of Military Record), both dated 15 August 2018, with VA Form 21-22a (Appointment of Individual as Claimant's Representative) and attorney- authored petition with listed exhibits. 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 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 an NCO, had the duty to support and abide by the Army's drug policies. By the incident 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 clearly suffering from the symptoms of PTSD and TBI when he was discharged. 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. There is no evidence in the record, nor has the applicant produced any 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. The applicant's contentions regarding his behavioral health issues which involved being diagnosed with PTSD and TBI, 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 incident 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. The applicant contends his current discharge deprives him of several benefits, and limits him from creating a better life for himself, indications that an upgrade would provide for better job opportunities and the benefits of the GI Bill. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 4. An RE code of 4 cannot be waived and the applicant is not eligible to reenlist. Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The third party statements provided with the application speak highly of the applicant's character and performance. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command, specifically the separation authority. 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 25 January 2019, and by a 4-1 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. in-service and post-service diagnosis of PTSD and OBH) 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 AR20180016181 1