1. Applicant's Name: a. Application Date: 18 December 2018 b. Date Received: 26 December 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and to change the reentry code that corresponds with the narrative reason for discharge. The applicant seeks relief contending, in pertinent part and in effect, was wrongfully accused of using drugs in Afghanistan in 2011. About 20 Soldiers were discharged, because a Soldier who was using drugs got caught, and turned in names of others whom he did not like. The Soldier was medically discharged after being suicidal. The applicant asserts never using drugs on base as the applicant tested numerous times, and they were all negative. The command interrogated and threatened them, even with negative urinalysis results. The applicant was never a bad Soldier as there is no other derogatory information. After discharge, the applicant went through depression, which led to using medical marijuana, instead of the prescribed medication. The applicant was granted a 70 percent evaluation for PTSD by VA (note that there is no record of the evaluation). 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 Occupational Problem. Post-service, the applicant has a 70% service-connected diagnosis for PTSD from the VA. The VA has also diagnosed the applicant with TBI, Anxiety, and Depression. 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 3 May 2019, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD, TBI, and OBH). 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 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: 21 November 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 September 2011 (2) Basis for Separation: The applicant was informed of the following reasons: On diverse occasions, between 1 April 2011 and 7 May 2011, the applicant wrongfully used Hashish, a Schedule I controlled substance while receiving hazardous duty pay. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 16 September 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 September 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 November 2009 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 20 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (4 January 2011 to 20 October 2011) f. Awards and Decorations: NDSM; ACM-2CS; GWOTSM; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Partial CID Report, dated 4 August 2011, indicates the applicant was the subject of an investigation for wrongful using, possessing, and distributing a controlled substance, and making a false official statement. Memorandum (Commander's Report), dated 16 September 2011, indicates the applicant an imposition of an Article 15 proceedings; however, it is NIF. The applicant's DD Form 214, indicates the applicant was discharged at the rank of Private E-2. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 18 August 2011, indicates the applicant and examiner noted behavioral health issues. Report of Mental Status Evaluation, dated 22 August 2011, indicates the applicant had an "AXIS I (psychiatric conditions)" diagnoses of "Family Stressor" and Occupational Stressors." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 18 December 2018; DD Form 214; and VA letter (first page), dated 27 May 2014. 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 general (under honorable conditions) discharge to honorable and to change the reentry code that corresponds with 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 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 wrongfully accused of using drugs in Afghanistan in 2011, as he never used drugs on base and all the results of his urinalyses were negative. 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 sufficient 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 and receiving 70 percent evaluation for PTSD were carefully considered. A careful review of the available record indicates the applicant's behavioral health issues symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. However, the applicant did not provide documentary evidence, nor is there a record of his asserted service-connected post-traumatic stress disorder. Based on the available record, 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. Insofar as changing the reentry code from "4" to "1," 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 4 that corresponds with the narrative reason for his discharge. An RE code of 4 cannot be waived and it indicates that the applicant is no longer eligible for reenlistment. 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 3 May 2019, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (i.e. post- service diagnosis of PTSD, TBI, and OBH). 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 AR20190001588 1