1. Applicant's Name: a. Application Date: 14 June 2019 b. Date Received: 20 June 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, evidence of steroid use resulting in a court-martial were found on another person. He had no evidence of steroid use. At the time of his court-martial, he was young and scared as he was pushed into a situation of signing a plea. The court-martial members were of his own chain of command. It was a totally biased, one-sided, and unfair trial. He has PTSD and TBI. He was determined to be service-connected disabled through the VA. 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 Depression; Suicide Attempt-Hanging; Opioid Abuse; Opioid Dependence; Chronic Pain Syndrome. The applicant is 80% service-connected from the VA. The VA has also diagnosed the applicant with Opioid Dependence, Depressive Disorder NOS. In summary, the applicant has a BH diagnosis that is partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 26 August 2020, and by a 4-1 vote, the Board determined that the discharge was inequitable. Based on the applicant's quality of service, to include combat service and the circumstances surrounding the discharge (service-connected PTSD diagnosis), the proper discharge and separation procedures were not followed in this case. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, 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: 7 November 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 October 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant violated MND-B GO1 by purchasing Deca Durablin (Anabolic Steroids), a schedule III controlled substance on 31 May 2007. Y The applicant also committed the following offenses: The applicant drove under the influence of alcohol being under the legal age limit on 23 September 2006. The applicant disobeyed a lawful order from the medic on 27 April 2007. The applicant was derelict in the performance of his duties on 9 August 2006. The applicant failed to report to an ASAP appointment on 28 August 2006. The applicant failed to report on 29 August 2006, and 9 August 2006. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 12 October 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 17 October 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 November 2005 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 20 / GED / 105 c. Highest Grade Achieved / MOS / Total Service: E-2 / 13F10, Fire Support Specialist / 1 Year, 11 months, 16 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (12 October 2006 to 29 October 2007) f. Awards and Decorations: ARCOM; NDSM; ICM; GWOTSM; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Five separate District Court Violation Notices, which cited the following offenses on 23 September 2006: illegal consumption of ethyl alcohol by an underage person; drove vehicle while under the influence of alcohol; careless driving; expired license plates; and drove with blood alcohol content of 0.08 or more. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 16 August 2006, indicates an "AXIS I" diagnosis of "Depression," and an additional report, dated 18 June 2007, indicates an "ASIX" diagnosis of "Opioid Abuse (304.00), Adjustment Disorder with Mixed Anxiety and Depressed Mood (309.26). Report of Mental Status Evaluation, dated 10 September 2007, indicates an "Axis I" diagnosis of "Anxiety d/o NOS" and the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. Report of Medical History, dated 10 September 2007, indicates the applicant noted behavioral health issues 5. APPLICANT-PROVIDED EVIDENCE: Application for Correction of Military Record, dated 14 June 2019, with self-authored statement, and DD Form 214. 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 states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 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 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. 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 service record further reflects that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, paragraph 14- 12c(2), block 26 separation code as "JKK," block 27 reentry code as "RE-4," and block 28, narrative reason for separation as "Misconduct." Therefore and as approved by the separation authority, the following administrative corrections are warranted: a. block 25, separation authority to AR 635-200, Chapter 14-12c; b. block 26, separation code to JKQ; c. block 27, reentry code to 3; and d. block 28, reason for separation to Misconduct (Serious Offense). 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 at the time of his court-martial, he was young and scared; he was pushed into a situation of signing a plea; the court-martial members were member of his own chain of command; and the trial was totally biased, one-sided, and unfair. However, the available records do not reference any court-martial. There is also 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 any 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 narrative reason for his discharge. The applicant's contentions regarding being diagnosed with PTSD and TBI, were carefully considered. A careful review of the available record and the applicant's documentary evidence did not provide any PTSD or TBI diagnoses. However, the available record does indicate that the applicant's behavioral health issues symptoms existed, and the applicant, indirectly, 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 is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The available 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 26 August 2020, and by a 4-1 vote, the Board determined that the discharge was inequitable. Based on the applicant's quality of service, to include combat service and the circumstances surrounding the discharge (service-connected PTSD diagnosis), the proper discharge and separation procedures were not followed in this case. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, 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 AR20190009740 1