1. Applicant's Name: a. Application Date: 30 October 2018 b. Date Received: 13 November 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant also requested to be awarded The Purple Heart for injuries. The applicant seeks relief contending, in effect, that the discharge should be upgraded because the applicant was discharged quickly and unjustly because of the record of conduct. The applicant contends that the punishment did not fit the crime. The applicant was guilty by association with a friend that the chain of command did not like. The applicant was a good Soldier who served two tours. The first was in 06-08 where the applicant received a CIB his first day in section and many times thereafter. The applicant was blown off a bridge which resulting in severe case of TBI that he was not aware of until years later. The applicant volunteered to deploy a second time/tour over the offer of getting out with disability from injuries (breaking his back). The applicant also sustained a torn ACL before the 2nd tour and never had it fixed as promised. During the 2nd tour the applicant was also field promoted to E-5 and was waiting to be pinned. 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 Adjustment Disorder, Post-Concussive Syndrome, and Depression. The applicant is 70% service-connected for PTSD from the VA. The VA has also diagnosed the applicant with Cognitive Disorder NOS, Cannabis Abuse, Cannabis Dependence, and PTSD. In summary, the applicant has 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 2020, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBHI and 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), 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: 4 November 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 August 2009 (2) Basis for Separation: The applicant was informed of the following reasons: for having received a Field Grade Article 15 for the wrongful use of Diazepam on 24 July 2009; Violating General Order Number 1, Multi-National Division-Baghdad, by consuming alcohol on 11 August 2009; and Being disrespectful to a noncommissioned officer on 11 August 2009. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 August 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 5 September 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 June 2005 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 4 months, 6 days (the applicant was retained in service 18 days for the convenience of the government) d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (30 October 2006 to 16 January 2008) f. Awards and Decorations: ARCOM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR, CIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 24 July 2009, for wrongfully using diazepam while receiving special pay under 37 U.S.C. 310 between 8 June 2009 and 10 June 2009. The punishment consisted of reduction to E-2, forfeiture of $784.00 pay, extra duty for 45 days, and an oral reprimand. Report of Behavioral Health Evaluation, dated 20 August 2009, which indicates the applicant had the mental capacity to understand and participated in the proceedings, was mentally responsible, and met the retention requirements of Chapter 3, AR 40-501. The applicant did not have a history of TBI's and did not meet criteria for PTSD. The applicant was mentally responsible, able to distinguish right from wrong. The applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. Negative counseling statements reference acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 293; statement in support of claim to the Department of Veterans Affairs; photo's in support of TBI injury; and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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. 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. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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. Furthermore, by violating the Army's policy not to possess or use illegal drugs, the applicant compromised the trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. 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 seeks relief contending that his discharge should be upgraded because he was discharged quickly and unjustly because of his record of conduct. The applicant contends that the punishment did not fit the crime. He was guilty by association with a friend that the chain of command did not like. He contends he was a good Soldier who served two tours. His first was in 06-08 where he received his CIB his first day in section and many times thereafter. He was blown off a bridge which resulting in his severe case of TBI that he was not aware of until years later. He volunteered to deploy his second time/tour over the offer of getting out with disability from injuries (breaking his back). He also sustained a torn ACL before his 2nd tour and never had it fixed as promised. During his 2nd tour he was also field promoted to E-5 and was waiting to be pinned. The applicant's contentions were noted; however, 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 character of the applicant's discharge is commensurate with his overall service record. Also; the service record does not support the applicant's contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service at the time of discharge. The applicant also requested that he be awarded he Purple Heart for his injuries. However, the applicant's requested issue of being awarded the Purple Heart, does not fall within the purview of this Board. This issue will be address by the Army Board for Correction of Military Records (ABCMR), in a separated document. 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 8 May 2020, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBHI and 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), 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 AR20180016400 1