1. Applicant's Name: a. Application Date: 24 August 2018 b. Date Received: 11 September 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 seeks relief contending, in pertinent part and in effect, the urinalysis results coded "CO" was due to a PTSD diagnosis resulting from a sexual assault, which warrants the discharge to be changed to an honorable discharge according to AR 600-85. 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 Alcohol Use Disorder, Adjustment Disorder, Cannabis Use Disorder, Opioid Use Disorder, Borderline Personality Disorder, and MST. The applicant is 100% service-connected for PTSD due to MST from the VA. The applicant has also been diagnosed with Borderline Personality Disorder and Unspecified Anxiety Disorder. In summary, the applicant has a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. After carefully examining the applicant's record of service during the period of enlistment under review, the Board determined the characterization was improper upon noting the government introduced documents into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable characterization of service. Accordingly, in a records review conducted on 13 September 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (i.e. in-service diagnosis of PTSD and MST) and limited use. Therefore, 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, and a change to the reentry eligibility (RE) code to 1. (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: 18 January 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 November 2017 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana during two separate occasions, between 12 August 2017 and 11 September 2017, and between 12 September 2017 and 3 October 2017. The applicant failed to go to her appointed place of duty at the prescribed time on five separate occasions on 7 June 2017, 9 August 2017, 24 August 2017, 14 September 2017, and 24 October 2017. On 13 September 2017, she made false official statements. On 6 September 2017, she was disrespectful towards her superior commissioned officer. On 22 June 2017, she disobeyed a senior noncommissioned officer. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 30 November 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 January 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2016 / 4 years, 27 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-2 / 42A10, Human Resources Specialist (not recorded on her DD Form 214) / 1 year, 5 months, 3 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for failing to obey an order or regulation; being disrespectful towards a superior commissioned officer; disobeying an NCO; displaying a disorderly conduct; missing appointments; being disrespectful towards and NCO; failing to be at her appointed place of duty at the prescribed time on numerous occasions; and Article 15 proceedings being initiated. CG Article 15, dated 13 September 2017, for failing to be at her appointed place of duty at the prescribed time on three separate occasions on 24 August 2017, 9 August 2017, and 7 June 2017; behaving with disrespect towards CPT B.L., her superior commissioned officer on 6 September 2017; and disobeying a senior NCO on 22 June 2017. The punishment consisted of a reduction to E-1, forfeiture of $373, and 14 days of extra duty and restriction. Sworn Statement, dated 19 September 2017, rendered by SGM N.M.H., relates to the applicant's "self-referral rehabilitation." Legal Opinion indicates "the government's introduction of such" documentation "was improper" as "limited use policy" was triggered; in that, the limited use evidence was introduced by the government, according to AR 600-85, paragraphs 10- 12d(1) and (2). FG Article 15, dated 13 October 2017, for failing to be at her appointed place of duty at the prescribed time on 14 September 2017, and making false official statements on two separate occasions on 13 September 2017. The punishment consisted of forfeiture of $799 pay per month for two months (suspended) and 45 days of extra duty. Record of Supplementary Action Under Article 15, UCMJ, dated 6 November 2017, vacated the suspended punishment of forfeiture of $799 pay per month for two months, imposed on 13 October 2017, due to the applicant leaving from her appointed place of duty without authority on 24 October 2017. An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 21 November 2017, indicates the specimen collected on 3 October 2017, on a "PO" (Probable Cause) basis, provided by the applicant, tested positive for "THC" i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, the applicant's documentary evidence, Report of Mental Status Evaluation, with only pages 1 and 2 of 3 made available with handwritten entries of "AXIS I" diagnoses as "Cannabis Use Disorder, PTSD," but no official identification of the examiner who completed the report as page 3 was not available. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 24 August 2018; TDS memorandum, dated 9 April 2018; Electronic Copy of the DD Form 2624, dated 2 October 2017; Report of Mental Status Evaluation, dated 29 September 2017; DA Form 4187, dated 5 October 2017; separation notification memorandum, dated 28 November 2017, with acknowledge of receipt; election of rights memorandum; commander's report memorandum, dated 6 December 2017; and separation decision with recommending memoranda, dated 9 January 2018. 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 her general (under honorable conditions) discharge to honorable. After examining the applicant's available record of service, and the issues and documents submitted with her application, the record confirms that the government introduced documents into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable characterization of service. The record further confirms that the applicant's discharge was appropriate because the quality of her 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 incident of misconduct, the applicant knowingly risked a military career and marred the quality of her service that ultimately caused her 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 she should have been retained on Active Duty. The applicant contends her discharge was unjust because her urinalysis results coded "CO" resulting from a sexual assault due to her PTSD diagnosis warranted a change to an honorable discharge according to AR 600-85. 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 her issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that she 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. Insofar as the applicant's contentions that the "CO" urinalysis coding warranted an honorable discharge according to AR 600-85, Table "10-1," the applicant's service record does not contain a DD Form 2624 (Specimen Custody Document for Drug Testing) that shows the urinalysis test coded as CO (Competence for Duty/Command Direct/Fitness for duty). However, the evidence of record references only to two collected specimen that tested positive for marijuana (on 11 September 2017, and 3 October 2017). Although, the applicant provided documentary evidence of "CO" coding, which is not referenced or included in the separation packet. Further, given the proximity of the testing, it appears the CO coding used on the DD Form 2624 was in all likelihood incorrect and should have been coded PO for "Probable Cause" instead of CO for "Competence for Duty" that does not represent protected limited use evidence. The applicant's contentions referenced being sexually assaulted; however, the available record reflected, finding that "no probable cause existed to believe that the applicant was sexually assaulted due to the applicant's inability to identify her alleged attacker and her documented refusal to participate in any investigation." Moreover, the applicant's election of rights regarding her separation proceedings, dated 30 November 2011, indicate at paragraph 10, that the applicant had not filed an unrestricted report of sexual assault within the 24 months of the initiation of her separation action, that she did not believe the separation action was a direct or indirect result of a sexual assault, and that she did not believe that she suffered from Post- Traumatic Stress Disorder. Although the records show the proper discharge and separation procedures were not followed in this case, insofar as it applies to the characterization of discharge, the reason for 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: Accordingly, in a records review conducted on 13 September 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (i.e. in-service diagnosis of PTSD and MST) and limited use. Therefore, 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, and a change to the reentry eligibility (RE) code to 1. 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 / RE-1 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 AR20190000727 1