1. Applicant's Name: a. Application Date: 24 January 2019 b. Date Received: 24 January 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel request an upgrade of an under other than honorable conditions discharge to honorable, a change of narrative reason for discharge to end of Active Service, and a change of reentry eligibility (RE) code to RE-1. The applicant seeks relief contending, in effect, that a diagnosis of Post-Traumatic Stress Disorder (PTSD) contributed to the misconduct and untimely discharge. The applicant contends that a voluntary submission to treatment cannot be used against the applicant on the issue of characterization of service. The applicant believes the responsibilities while deployed to man a 155MM Howitzer contributed to the PTSD diagnosis and subsequent alleged misconduct. Over the course of deployment, the applicant and the team expended approximately 2,500 rounds, many of which landed on innocent people and villages. The applicant distinctly remembers a time that a young girl was killed when the rounds hit an unintended target. The applicant also had the unenviable task of assisting in the loading and offloading of corpses onto helicopters. This experiences, combined with the deleterious effect of the Malaria vaccination, compounded and caused the applicant to experience PTSD like symptoms, severe nightmares and paranoia upon return in 2008. When the applicant returned from the deployment, the applicant began to consume excessive amounts of alcohol in an attempt to stave off the nightmares the applicant was now experiencing. Further exacerbating the mental issues, the applicant was suffering with a move from the 173rd to the 82nd, in which the applicant and a couple of others from the 173rd with whom the applicant served with were not well received. When the applicant got to Fort Bragg, the applicant noticed that many of the gas stations surrounding the base sold "Spice," a synthetic marijuana the was not tested by the Armed Forces at the time. The drinking turned to both drinking and substance use, including both spice and marijuana. 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 Combined Drug and Alcohol Abuse, Personality Disorder, and Unspecified Psychoactive Substance Abuse. The VA has diagnosed the applicant with PTSD, Alcohol Use Disorder, and Cannabis Use Disorder. In summary, the applicant has a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 28 October 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (i.e. post- service diagnosis of 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 / Under Other Than Honorable Conditions b. Date of Discharge: 10 February 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 November 2009 (2) Basis for Separation: The applicant was informed of the following reason: for the wrongful use of marijuana between 1 August 2009 and 31 August 2009. (3) Recommended Characterization: Under Other than Honorable Conditions (4) Legal Consultation Date: 16 November 2009 (5) Administrative Separation Board: The applicant waived consideration of his case by an administrative separation board, to include personal appearance before such board. (6) Separation Decision Date / Characterization: 21 January 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 February 2006 / 4 years, 22 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13D1P, Field Artillery Automated Tactical Data System Specialist / 3 years, 10 months, 19 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (13 May 2007 to 17 June 2008) f. Awards and Decorations: AGCM, NDSM, GWOTSM, ASR, OSR, NATOMDL, CAB, ACM-CS g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 4 September 2009, reflects the applicant tested positive for THC 110 during an Inspection Unit (IU) urinalysis testing conducted on 31 August 2009. Offer to plead guilty (pretrial agreement), dated 16 November 2009, to the charges of being absent without leave (AWOL) 14 October 2009 until his return on 4 November 2009 and wrongfully using marijuana between 1 August 2009 and 31 August 2009. The applicant offered to plead guilty provided his case was referred to a summary court martial. Summary Court Martial, dated 16 November 2009, for being absent without leave (AWOL) 14 October 2009 until his return on 4 November 2009 and wrongfully using marijuana between 1 August 2009 and 31 August 2009. The punishment consisted of reduction toe E-1, forfeiture $932.00 pay per month for one months, and confinement for 30 days. Report of Behavioral Health Evaluation, dated 21 December 2009, which shows the applicant was diagnosed with an Axis I for polysubstance dependence (by hx) and an Axis II for deferred, r/o personality disorder NOS (by hx). It was noted that the applicant had the mental capacity to understand and participated in the proceedings and was mentally responsible. The applicant did not exhibit symptoms that meet criteria for nor had the applicant been diagnosed with PTSD or a Traumatic Brain Injury (TBI). There was no evidence of an emotional or mental disorder of psychiatric significance at that time to warrant disposition through medical channels; therefore, the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command, including administrative discharge. Negative counseling statement reference his wrongful use of marijuana and his administrative separation. i. Lost Time / Mode of Return: Lost time 45 days; AWOL for 21 days (14 October 2009 to 3 November 2009) / mode of return unknown; and confinement for 24 days 16 November 2009 to 10 December 2009). j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; and enclosures 1-10 which includes a Transcript of Hearing with the Department of Veterans Affairs, dated 8 November 2016 and medical documents from the University Behavioral Health of Denton. 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. 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, 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. 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 through legal counsel request an upgrade of his under other than honorable conditions discharge to honorable, a change of his narrative reason for discharge to end of Active Service, and a change of his reentry eligibility (RE) code to RE-1. 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 a 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 evidence of record shows the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The appropriate RE code is 4. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending that his diagnosis of Post-Traumatic Stress Disorder (PTSD) contributed to his misconduct and his untimely discharge. He contends that a voluntary submission to treatment cannot be used against him on the issue of characterization of service. The applicant believes his responsibilities while deployed to man a 155MM Howitzer contributed to his PTSD diagnosis and subsequent alleged misconduct. Over the course of his deployment he and his team expended approximately 2,500 rounds, many of which landed on innocent people and villages. He distinctly remembers a time that a young girl was killed when the rounds hit an unintended target. The applicant also had the unenviable task of assisting in the loading and offloading of corpses onto helicopters. This experiences, combined with the deleterious effect of the Malaria vaccination, compounded and caused his to experience PTSD like symptoms, severe nightmares and paranoia upon his return in 2008. When he returned from his deployment, he began to consume excessive amounts of alcohol in an attempt to stave off the nightmares he was now experiencing. Further exacerbating his mental issues he was suffering with his move from the 173rd to the 82nd, in which he and a couple of other from the 173rd with whom he served with were not well received. When he go to Fort Bragg, he noticed that many of the gas stations surrounding the base sold "Spice," a synthetic marijuana the was not tested by the Armed Forces at the time. His drinking turned to both drinking and substance use, including both spice and marijuana. The applicant's contentions were noted; evidence submitted by the applicant from the University Behavioral Health of Denton, dated 9 October 2009, shows that the applicant was referred for treatment of polysubstance dependence, alcohol dependence and post-traumatic stress disorder and that he was diagnosed with an Axis I for alcohol dependence, polysubstance dependence, and post-traumatic stress disorder. However, at the time of discharge the Report of Behavioral Health Evaluation, dated 21 December 2009 shows the applicant was diagnosed with an Axis I for polysubstance dependence (by hx) and an Axis II for deferred, r/o personality disorder NOS (by hx). It was noted that the applicant had the mental capacity to understand and participated in the proceedings and was mentally responsible. The applicant did not exhibit symptoms that meet criteria for nor had the applicant been diagnosed with PTSD or a Traumatic Brain Injury (TBI). There was no evidence of an emotional or mental disorder of psychiatric significance at that time to warrant disposition through medical channels; therefore, the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command, including administrative discharge. It appears the applicant's chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and wrong as indicated by the mental status evaluation. Further, there are many Soldiers with the same condition that completed their service successfully. It should be noted Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. Army Regulation 635-200, paragraph 3-7b, provides that a general (under honorable conditions) discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. The applicant and his counsel make reference to the procedures of being discharged in accordance with AR 135-178, however it should be noted that this regulation does not apply to the applicant, he was discharged for violating the procedures of AR 635-200, Chapter 14, paragraph 14-12c(2). 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. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 28 October 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of 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. 11. 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 AR20190005243 1