1. Applicant's Name: a. Application Date: 19 August 2019 b. Date Received: 23 August 2019 c. 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, he has wanted nothing more than to serve the country, so much so that he enlisted into the United States Army. The applicant returned home with many traumatic memories and injuries that would later lead to his diagnosis of PTSD. The Board can restore some measure of justice and dignity to the applicant by upgrading his discharge. To not do so would go against the essence of the new clarifying guidelines issued regarding requests by veterans for modification of their discharge due to diagnoses such as PTSD. The applicant is proud of the fact that he served in the United States Army, but the badge of inferiority and shame remains with him due to his less than honorable discharge status. Counsel further details the contentions in an allied legal brief provided with the application. 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 combat related PTSD. The applicant is service connected for treatment purposes for combat related PTSD. The VA has also diagnosed the applicant with Adjustment Disorder with Cannabis and Alcohol Abuse; Substance Induced Mood Disorder, and Antisocial Personality traits. 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 14 October 2020, and by a 3-2 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 (PTSD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200 / Chapter 14-12c (2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 12 October 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 August 2006 (2) Basis for Separation: Under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense, the applicant was informed of the following reasons: Soldier was convicted through Summary Court Martial on 30 August 2006 for disobeying a superior commissioned officer (Article 90), Damaging Government Property (Article 108), Illegal use of marijuana X2 (Article 112a), and stealing gasoline from AAFES (Article 121). The applicant had received two previous Company Grade Article 15s (disrespect and disobeying lawful orders) and two previous Field Grade Article 15s (both for drug use). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 16 August 2006 (5) Administrative Separation Board: On 16 August 2006, the applicant unconditionally waived consideration of his case before an administrative separation board. (6) Separation Decision Date / Characterization: On 28 September 2006, the separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 November 2003 / 3 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14S10, Avenger Crewmember / 2 years, 11 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (21 June 2004 - 20 June 2005) f. Awards and Decorations: NDSM, GWOTSM, ICM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 15 July 2005, for disrespectful language toward SGT W. (23 June 2005); and, willfully disobeyed a lawful order from SFC M (6 May 2005). The punishment consisted of a reduction to E-3; forfeiture of $300 pay (suspended); and, extra duty for 14 days. CG Article 15, dated 21 September 2005, for wrongfully communicate a threat to SGT R. (8 September 2005); failing to go at the time prescribed to his appointed place of duty (8 September 2005); and, make a false official statement "that the platoon sergeant told you that you did not have to return to duty the rest of the day," (8 September 2005). The punishment consisted of a reduction to E-2; forfeiture of $150 pay (suspended); and, extra duty and restriction for 14 days. FG Article 15, dated 2 April 2006, for wrongfully using marijuana (between 22 February and 22 March 2006). The punishment consisted of a forfeiture of $636 pay per month for two months; and, extra duty for 45 days. Record of Trial by Summary Court-Martial, reflects the applicant was charged with: Charge I: Article 90, UCMJ, having received a lawful command from 1LT K. P., his superior commissioned officer, then known by the applicant to be his superior commissioned officer, to park his privately owned vehicle, or words to that effect, did, at or near Fort Hood, Texas, on or about 5 April 2006, willfully disobey the same. Guilty, consistent with the plea. Charge II: Article 108, UCMJ, did at or near Fort Hood, Texas. on or about 22 March 2006, without proper authority, willfully damage by throwing on the ground a Micron GX3 laptop computer (Serial#: 340627-0001), military property of the United State, the amount of said damage being in the sum of about $243.62. Guilty, consistent with the plea. Charge III: two specifications of Article 112a, UCMJ: Specification 1: did, between on or about 6 April 2006 and on or about 5 May 2006, wrongfully use marijuana. Guilty, consistent with the plea. Specification 2: did, between on or about 21 May 2006 and on or about 20 June 2006, wrongfully use marijuana. Guilty, consistent with the plea. Charge IV: Article 121, UCMJ: did, on or about 4 April 2006, steal approximately 15 gallons of unleaded gasoline, of a value of about $38.70, property of the Army Air Force Exchange Service a Department of Defense non-appropriated fund activity. The sentenced adjudged: Forfeiture $849 pay per month for one month; and, confinement for 30 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation, dated 29 August 2006, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with clear a thinking process. The applicant was diagnosed with: Occupational Problem. The applicant provided a copy of his VA disability rating decision, dated 23 April 2019, which reflects the applicant was granted a service connection for treatment purposes for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; DD Form 293; legal brief; self-authored statement; Clarifying Guidance to Military Discharge Review Boards; VA Rating Decision; GAO, DOD Health article; Cover letter; VA Form 21-22a. 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. 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 counsel, requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. 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 marred the quality of his service. 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 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 he was suffering from PTSD, which affected his behavior and led to his discharge. The applicant contends the VA has rated him with a service-connected disability for PTSD. The applicant's service record contains documentation that supports a diagnosis of in service occupational problem; however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 29 August 2006, the applicant underwent a mental status evaluation, which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears, the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The applicant contends that because of his PTSD, his initial discharge was unjust and unfair. However, 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 applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant contends that an upgrade of his discharge would allow veterans benefits through the medical treatment for his TBI. However, eligibility for veteran's benefits to include medical treatment, 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 14 October 2020, and by a 3-2 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 (PTSD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: 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 AR20190011711 4