1. Applicant's Name: a. Application Date: 23 December 2018 b. Date Received: 8 January 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation to include the reentry eligibility (RE) code. The applicant seeks relief contending, in effect, military regulations state that a command directed drug test falls under the limited use policy. The regulation states that the drug test cannot be used to characterize a discharge. If it is used, the applicant will be automatically granted an honorable discharge. The applicant was given a command directed (CO) urinalysis test. The applicant also submitted copy of the limited use policy under AR 600-85, paragraph 10-12 that clearly states "additionally this policy limits the characterization of discharge to honorable if protected evidence is used against me". The commander violated Army law and the applicant's rights when the commander used protected information to separate the applicant with an under other than honorable conditions discharge. This unjust treatment caused the applicant to have PTSD, as annotated in the discharge packet, these mental disturbances rendered the applicant unfit for the military. The applicant has lived with this incorrect discharge for 14 years and it has cost many jobs and embarrassment. 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 information regarding the applicant. The applicant does not have a service-connected rating or any records from the VA. There is currently no documentation that supports a diagnosis of PTSD. In summary, there is insufficient evidence to determine if 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 17 May 2019, and by a 3-2 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of a biochemical test which was miscoded as CO (Command Directed). Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 31 August 2004 c. Separation Facts: Yes (1) Date Charges Were Preferred: 18 August 2004 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which shows on 18 August 2004, the applicant was charged without authority, absented himself from his unit, (5 August 2004 until 12 August 2004); escape from the custody of SFC L.C.M., a person authorized to apprehend the accused (17 August 2004); and wrongfully use marijuana between (5 July 2004 and 5 August 2004). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 23 August 2004 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 25 August 2004 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 May 2003 / 4 years b. Age at Enlistment / Education / GT Score: 17 years / GED Certificate / 121 c. Highest Grade Achieved / MOS / Total Service: E-3 / 91W10, Healthcare Specialist / 1 year, 2 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 27 July 2004, for being AWOL (2 July 2004 until 12 July 2004); reduction to PV2 / E-2, forfeiture of $312 pay, extra duty and restriction for 14 days. Positive urinalysis test coded CO (Competence for Duty/Command Direct/Fitness for Duty), dated 5 August 2004, for THC. The applicant received a negative counseling statement, dated 12 August 2004, for returning from AWOL. i. Lost Time / Mode of Return: AWOL x2 for 22 days, 2 July 2004 until 15 July 2004 for 14 days, mode of return unknown; 5 August until 12 August 2004 for 8 days; and Confinement Civilian Authority for 11 days, 16 August 2004 until 27 August 2004. Total lost time was 33 days. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 23 December 2018 (two pages); excerpt of AR 600-85, pages 66 and 67; prior records review AR20160019647, page 2; and a statement; / DD Form 149, 3 January 2019 (two pages); and excerpt of AR 600-85, pages 66 thru 68 67; and prior records review AR20160019647, page 2; and applicant's unsigned and undated statement; claim for damage, injury or death (Standard Form 95 (two pages); applicant's letter (two pages); letter, Chief, Congressional Liaison and Inquiries; radiation oncology extended follow-up; applicant's letter to the Secretary of Defense / with associated documents (five pages); DD Form 293 (two pages), undated; duplicate DD Form 149 and documents; DD Form 293, undated (two pages); excerpt of AR 600-85, pages 66 thru 68; and prior records review AR20160019647, page 2; 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" 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 the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation to include the RE code. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the government introduced into the discharge packet the results of a biochemical test conducted on 5 August 2004, which was coded CO (Competence for Duty Command Direct/Fitness for duty). This is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. The characterization of service was not consistent with the procedural and substantive requirements of the regulation, was not within the discretion of the separation authority, and the applicant was not provided full administrative due process. Further, the applicant requests a change to the narrative reason for separation to include the RE code. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The regulation further stipulates that no deviation is authorized. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 17 May 2019, and by a 3-2 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of a biochemical test which was miscoded as CO (Command Directed). Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / 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 AR20190000250 5