1. Applicant's Name: a. Application Date: 1 July 2019 b. Date Received: 9 July 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation to secretarial authority or uncharacterized. The applicant through counsel seeks relief contending, in effect, has a 70 percent VA disability rating for PTSD. The actions are mitigated by PTSD and the circumstances surrounding the separation. The applicant self- medicated to take care of a real injury sustained in an automobile accident. The discharge prevents the applicant from receiving VA benefits. 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 no BH diagnoses while on active duty. The applicant is 70% service-connected for PTSD from the VA. The VA has also diagnosed the applicant with Anxiety Disorder, Panic Disorder, and ADHD. In summary, the applicant's BH diagnosis is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 9 December 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, 27, and 28, contain erroneous entries. The Board directed the following administrative corrections and reissue of the applicant's DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, b. block 26, separation code changed to JKQ, c. block 27, reentry code changed to 3, d. block 28, narrative reason for separation changed to Misconduct (Serious Offense). (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: 31 July 2009 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 8 July 2009 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; he wrongfully used oxymorphone, a scheduled II controlled substance, between (20 February 2009 and 24 February 2009). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 July 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 July 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 January 2007 / 6 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 years / HS Graduate / 125 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11C10, Indirect Fire Infantryman / 2 years, 6 months, 13 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq, 27 November 2007 to 11 January 2009 f. Awards and Decorations: NDSM, ICM-CS. GWOTSM, ASR, OSR, VUA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Positive urinalysis test coded IU (Inspection Unit), dated 24 February 2009, for OXMOR. Several negative counseling statements for failure to report, a positive drug test, an initial counseling, not having custody of a child and exceeding the pass radius without a pass. Report of Mental Status Evaluation, dated 28 May 2009, relates the applicant was psychiatrically cleared for any administrative action deemed appropriate by command. FG Article 15, dated 27 May 2009, for wrongful use of oxymorphone, a scheduled II controlled substance, between (20 February 2009 and 24 February 2009); reduction to PV2 E-2, forfeiture of $960 pay for two months (suspended), extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: VA document dated 9 July 2013, revealed the applicant was service connected for PTSD and assigned an evaluation of 70 percent disabling. Review PTSD Disability Benefits Questionnaire, dated 17 April 2014, relates the applicant had diagnoses of PTSD and alcohol abuse. 5. APPLICANT-PROVIDED EVIDENCE: Enclosure 1, DD Form 293 (two pages); Enclosure 2, attorney brief (eight pages) and power of attorney; Enclosure 3, DD Form 214; Enclosure 4, self-authored statement; Enclosure 5, two Enlisted Record Briefs; Enclosure 6, medication profile; Enclosure 7, Report of Medical Examination (two pages), Report of Medical History (two pages); Enclosure 8, positive drug test (two pages); Enclosure 9, sworn statement (two pages); Enclosures 10 and 12, developmental counseling statement; Enclosure 11, medical review officer memorandum; Enclosure 13, FG Article 15; Enclosures 14, 15; Chapter 14 discharge documents (12 pages); Enclosure 16, Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (four pages); Enclosure 17, Memorandum For Secretaries of The Military Departments, Subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military /Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment (five pages); Enclosure 18, VA Medical document; and Enclosure 19, Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (seven pages). 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. 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 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 14-12c(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 the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation to secretarial authority or uncharacterized. 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. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier. The applicant, as an 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 an honorable discharge at the time of separation. 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 requests a change to the narrative reason for separation to Secretarial Authority or uncharacterized.. 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 regulation further stipulates that no deviation is authorized. The applicant through counsel seeks relief contending, he has a 70 percent VA disability rating for PTSD. The applicant provided a VA document that revealed he was service connected for PTSD and assigned an evaluation of 70 percent disabling. The applicant further contends, his actions are mitigated by his PTSD and the circumstances surrounding his separation. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his actions were mitigated by his PTSD and the circumstances surrounding his separation. The applicant also contends, he self- medicated to take care of a real injury sustained in an automobile accident. He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant additionally contends, his discharge prevents him from receiving VA benefits. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 9 December 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, 27, and 28, contain erroneous entries. The Board directed the following administrative corrections and reissue of the applicant's DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, b. block 26, separation code changed to JKQ, c. block 27, reentry code changed to 3, d. block 28, narrative reason for separation changed to Misconduct (Serious Offense). 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change c. Change Reason to: Misconduct (Serious Offense) d. Change Authority to: AR 635-200, paragraph 14-12c e. Change SPD / RE Code to: JKQ / 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 AR20190009718 1