1. Applicant's Name: a. Application Date: 7 June 2019 b. Date Received: 14 June 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade the under other than honorable conditions discharge to honorable and to change the narrative reason for discharge. The applicant seeks relief contending, in pertinent part and in effect, the discharge was unjust, because the applicant never had drug abuse issues, until medically evacuated to Germany from "FOB Warrior." The applicant was in close proximity of an IED detonation while a gunner. Tests on the applicant's brain and spine were conducted due to having a lot of pain issues and the doctors prescribed an unlimited amount of pain medication. The applicant returned to Iraq and the medics continued to provide pain medication, which the applicant thought was documented. The doctors also informed that he was qualified for MEB; however, the unit refused to allow the MEB process. The applicant was never provided the opportunity to rehabilitate. The applicant was never AWOL as a NCO said to return to the apartment and that the applicant would be called when needed. The applicant was not a bad Soldier. The applicant never had any issues until after deployment. Without a doubt, drug issues were related to PTSD and mTBI, which have worsened. 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 PTSD and substance abuse. The applicant is not service-connected from the VA. The VA has also diagnosed the applicant with PTSD, Psychotic Disorder NOS, Mood Disorder NOS, and Cannabis Abuse. In summary, the applicant has 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 21 August 2020, and by a 5-0 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 (in-service diagnosis of OBH and service-connected PTSD), combat wounded, and homelessness. 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. (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 January 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 October 2010 (2) Basis for Separation: The applicant was informed of the following reasons: Between 27 June 2010 and 30 June 2010, the applicant wrongfully used cocaine. Between 29 May 2010 and 30 June 2010, the applicant wrongfully used marijuana. Between 4 November 2009 and 7 November 2009, the applicant wrongfully used oxymorphone. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 23 November 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 April 2008 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 19 / GED / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 21A10, Combat Engineer / 2 years, 5 months, 18 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (3 January 2009 to 19 December 2009) f. Awards and Decorations: PH; ARCOM; NDSM; ICM-CS; GWOTSM; ASR; OSR; CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: An electronic copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 30 November 2009, indicates the specimen collected on 7 November 2009, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "Oxmor." DD Form 2624 (Specimen Custody Document - Drug Testing), undated, indicates the specimen collected on 14 September 2010, on an "IU" (Inspection, unit) basis, which does not provide the applicant's information. Counseling statement for failing to obey an order or regulation; wrongfully using and possessing controlled substance; on-post driving privileges being revoked; and being command-referred to ASAP. Report of Behavioral Health Evaluation, dated 1 September 2010, shows the "AXIS I" diagnosis was deferred, and the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. DA Form 4187 (Personnel Action), dated 29 October 2010, shows the applicant's duty status changing from PDY to AWOL, effective 16 October 2010. DA Form 4187 (Personnel Action), dated 23 November 2010, shows the applicant's duty status changing from AWOL to DFR, effective 16 November 2010. i. Lost Time / Mode of Return: 59 days (AWOL on (19 July 2020 to 2 August 2019, for 15 days), (25 August 2010 to 29 August 2010, for 4 days), (16 October 2010 to 10 December 2010, for 40 days) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 23 July 2010, indicates the applicant and examiner noted behavioral health issues, including TBI and anxiety. Applicant's documentary evidence: Confidential medical record, dated 23 June 2016, noted current diagnoses as "PTSD, sleep deprivation, mood disorder, mild TBI with mild cog, slowing, and inefficient memory." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 7 June 2019, with self-authored statement, and Confidential medical record, dated 23 June 2016. 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 to upgrade his under other than honorable conditions discharge to honorable and to change 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 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 applicant contends the discharge was unjust because he never had drug issues until after his deployment; he was informed by his doctors that he was qualified for an MEB process, but his unit refused to allow the process; he was not provided rehabilitation opportunity; and he never went AWOL as his NCO told him to remain home until he was need. 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 evidence has been provided with the request for an upgrade of the discharge and to change the reason for his discharge. The applicant's contentions regarding his behavioral health issues which involved mTBI and PTSD, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with traumatic brain injury and 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. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c(2) is "Misconduct (Drug Abuse)," and the separation code is JKK. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. In consideration of the applicant's service accomplishments and quality of his service prior to the incident of misconduct, the Board can find that his accomplishments and complete period of service were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. 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 21 August 2020, and by a 5-0 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 (in-service diagnosis of OBH and service-connected PTSD), combat wounded, and homelessness. 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. 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 / 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 AR20190009025 4