1. Applicant's Name: a. Application Date: 23 February 2019 b. Date Received: 8 April 2019 c. Representative: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, prior to being prescribed medications for knee surgeries, the applicant was a distinguished Soldier and leader as shown by the military records. The applicant was awarded a Bronze Star with Combat Valor, Purple Heart for the wounds suffered in combat, and a battlefield promotion. The first surgery in January 2013, the applicant was prescribed Tramadol with information that it was non-additive. The applicant was prescribed more pain medications after the second and third surgeries. The prescription, Adderall, during recovery further complicated the addiction issues. The records show the applicant's service declined following the improper over-prescription of pain killers and Opioids for the multiple surgeries. Medical research studies have also concluded that PTSD was relieved by Opiates. The applicant suffered from the effects of the debilitating conditions resulting from service. 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, ADHD, Major Depressive Disorder, Alcohol Use Disorder, and Sedative/Hypnotic/Anxiolytic Dependence. The applicant is 70% service-connected for PTSD from the VA. In summary, the applicant's BH diagnosis is partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 27 March 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, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), valor, and a prior period of honorable service. 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 14-12c, the narrative reason for separation to Misconduct (Pattern of Misconduct), the separation code to JKA, 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: 15 December 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 November 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On 28 March 2017, 14 April 2017, and 12 May 2017, the applicant wrongfully used D- Methamphetamine. On 14 April 2017 and 12 May 2017, the applicant wrongfully used Alphahydroxy Alprazolam. On 8 January 2016, the applicant wrongfully possessed some amount of D- Methamphetamine and Alphahydroxy Alprazolam. On 4 January 2017, 27 May 2017, and 6 June 2017, the applicant stole military property. Between 14 April 2017 and 19 June 2017, the applicant willfully disobeyed lawful commands by his company and garrison commanders. The applicant demonstrated character and behavior characteristics not compatible with satisfactory continued service. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: Waived, 13 November 2017 (5) Administrative Separation Board: Waived, pursuant to a pretrial agreement, dated 12 September 2017 (6) Separation Decision Date / Characterization: 5 December 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 October 2014 / Indefinite b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B30, Infantryman / 13 years, 7 months, 19 days d. Prior Service / Characterizations: RA (27 April 2004 to 19 April 2009) / HD RA (20 April 2009 to 23 April 2011) / HD RA (24 April 2011 to 29 October 2014) / HD e. Overseas Service / Combat Service: SWA / Iraq (1 January 2005 to 1 January 2006), Afghanistan (10 July 2008 to 1 July 2009), (21 October 2010 to 6 October 2011) f. Awards and Decorations: BSM-V DEV; BSM; ARCOM-6; AAM-8; AGCM-3; NDSM; ACM-2CS; ICM-CS; GWOTSM; NCOPDR; ASR; OSR-2; NATO MDL; CIB g. Performance Ratings: Three NCOERs rendered during period of service under current review: 2 May 2014 thru 1 May 2015, Among the Best 2 May 2015 thru 1 May 2016, Did Not Meet Standard 2 May 2016 thru 7 February 2017, Met Standard h. Disciplinary Action(s) / Evidentiary Record: FG Article 15 and its associated documents, dated 7 September 2016, for two separate violations of Article 112a, UCMJ, for wrongfully possessing Methamphetamines, a Schedule II controlled substance on 8 January 2016, and wrongfully possessing Alpraxolam, a Schedule IV controlled substance on 8 January 2016. The punishment consisted of a reduction to E-5 (suspended), forfeiture of 1,583 pay per month for two months (suspended), 45 days of extra duty (suspended), and 45 days of restriction (suspended). Four separate CID Reports, dated 28 July 2017, 15 June 2017, 12 October 2017, and 6 July 2016, indicate the applicant was the subject of an investigation for housebreaking, larceny of Government property, and larceny of private property; wrongful possession of Methamphetamine, wrongful use of Methamphetamine detected by urinalysis, and wrongful use of Alprazolam detected by urinalysis; housebreaking and larceny of government property; and wrongful possession of Methamphetamine, wrongful use of Methamphetamine not detected by urinalysis, and communicating a threat. An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 14 April 2017, indicates the specimen collected on 29 March 2017, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "DMeth." An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 14 April 2017, indicates the specimen collected on 28 March 2017, on an "IU" (Inspection, Unit) basis, provided by the applicant, tested positive for "DMeth." An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 28 April 2017, indicates the specimen collected on 14 April 2017, on an "PO" (Probable Cause) basis, provided by the applicant, tested positive for "AHAL" and "DMeth." An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 25 May 2017 (at page 87), indicates the specimen collected on 12 May 2017, on an "RO" (Rehabilitation Testing) basis, provided by the applicant, tested positive for "AHAL." "DMeth," "OXCOD," and "OXMOR." Counseling statements continued disobeying lawful orders; disobeying the plan of action briefed to the applicant; failing to sign in according to schedule; driving while license is suspended; revising previous plan of action; being unable to obey lawful orders and refraining from criminal activities; having a fourth positive urinalysis; being recommended for an involuntary separation; failing to maintain accountability in work environment; inability with telling the truth; not showing for appointments; transporting trainees without license or identification on his person; violating Article 112a, UCMJ; and continuously failing to be at his appointed place of duty at the prescribed time. Pretrial Agreement, dated 12 September 2017, indicates in pertinent part that the applicant, while pending court-martial, offered to waive his right to an administrative separation board for an administrative separation action initiated under paragraph 14-12c due to misconduct, and in exchange, the GCMCA agreed to dismiss all referred charges and its specifications without prejudice upon the applicant completing and being released from an inpatient treatment, and not to re-prefer charges while the said agreement was in effect, and not prefer any new charges for similar or related misconduct committed prior to the acceptance of the agreement that may be revealed during the course of his cooperation with the CID. The Agreement was accepted by the GCMCA on 12 October 2017. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 15 May 2017, indicates the applicant and the examiner noted behavioral health issues. Report of Mental Status Evaluation, dated 30 November 2017, provides "BH Diagnoses" as "opiate dependence in recent remission, adjustment disorder," and comments that there was indication that the applicant's "alleged misconduct may be somewhat related to a BH condition- PTSD sx/chronic pain," and the applicant was psychiatrically cleared for administrative separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 23 February 2019, with self-authored statement; DD Form 214; applicant's military records consisting of recommendations for awards, personnel actions for battlefield promotion, NCOERs, BSM certificate with narrative, reenlistment documents, permanent Orders (AGCM, EIB, CIBs), ARCOM and AAM certificates, promotion Orders, NATO Medal certificate, ERB; medical records consisting of medication lists; and two character reference/supporting statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant's documentary evidence states, in effect, the applicant was employed on a multi-family ranch/farm and on a neighboring ranch. 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 under other than honorable conditions discharge to honorable. 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 an NCO, had the duty to support and abide by the Army's drug policies. By the serious incidents 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 record further confirms the government introduced into the discharge packet the results of a biochemical test conducted on 12 May 2017 (page 87), which was coded RO (Rehabilitation) and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. The record shows at pages 105 and 109, counseling statements that references the applicant's enrollment in the Army Substance Abuse Program. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. The applicant's contentions regarding his service having declined following the prescriptions of painkillers and Opioids he received for multiple surgeries, and that PTSD was relieved by Opioids, were carefully considered. A careful review of the available record indicates the applicant's behavioral health issues along with post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and a change to the narrative reason for his discharge. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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: In a records review conducted at Arlington, VA on 27 March 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, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), valor, and a prior period of honorable service. 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 14-12b, the narrative reason for separation to Misconduct (Pattern of Misconduct), the separation code to JKA, 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 (Pattern of Misconduct) d. Change Authority to: AR 635-200, paragraph 14-12b e. Change SPD / RE Code to: JKA / 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 AR20190006798 1