AR20180001462

1. Applicant’s Name:

a. Application Date: 10 January 2018

b. Date Received: 16 January 2018

c. Counsel:

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel
requests that his general (under honorable conditions) discharge to upgraded to honorable, that
his narrative reason for discharge be changed to a more appropriate less derogatory narrative,
such as Secretarial Authority, and that his reentry eligibility (RE) code be changed to a more
proper and equitable RE code. The applicant seeks relief contending, in effect, that his discharge
was the result of Post-Traumatic Stress Disorder that stemmed from events he experienced while
serving a fourteen month deployment to Iraq, which was the causation of the misconduct that
caused his inequitable separation. The applicant though legal counsel contends he was the victim
of multiple injustices and improprieties for a one time mistake. He was punished excessive and
unnecessary. He suffered from PTSD as a result of a combat tour in Iraq during Operation Iraqi
Freedom from 2007 to 2008 and made the mistake of turning to drug usage, as opposed to
seeking professional help. He is aware of this mistake and is very remorseful for his poor
decision. However, according to the Hagel memo, dated 3 September 2014, the Board must
reconsider petitions involving Soldiers who suffered from PTSD at the time of their discharge. He
believes there are issues of both equity and propriety in this action. The applicant has lived with
being separated from the military, knowing the unlimited potential he possessed as a Soldier. He
believes he should not have to live with the stigma of a general (under honorable conditions)
discharge, especially after selflessly serving his country as an exceptional Soldier for over three
years and a combat veteran for nearly eight years.

Per the Board’s Medical Officer, based on the information available for review at the time, the
applicant had a prior application to the board rejected in 2012; however, that application made
no reference to PTSD, which is now central to his mitigation claim. His separation Medical
Exam of 26 May 2009 showed a profile of 111111. His Separation MSE found no PTSD or TBI,
but did diagnose Cannabis Dependence and deferred on whether or not the applicant had a
personality disorder. The applicant’s self-report of his symptoms denied symptoms
characteristic of PTSD. For example, he denied troubled sleep or depression/worry. The JLV
showed a VA SC disability percentage of 90% (70% PTSD). His VA problem list claims a
history of traumatic brain injury, Chronic PTSD (2018), Alcohol Abuse in Remission,
Sedative/Anxiolytic Dependence. He had neither PTSD nor TBI diagnoses in AHLTA. A
history from the VA of 17 October 2016 showed the applicant saying he began using marijuana
when he was 17. The same note claimed, based on applicant’s reports, that he met full criteria
for PTSD. His prior history related to his previously denying symptoms of PTSD and TBI was
not addressed. He does not appear to have received psychological testing with validity
indicators. Despite the weakness of the notes defending a PTSD diagnosis, his VA diagnosis
fits criteria for Liberal Consideration of his misconduct (cannabis use), even though he did not
meet criteria, based on available evidence, at the time of his misconduct and discharge. Based
on Liberal Consideration policy, rather than a careful clinical weighing of the evidence, his
misconduct is mitigated. On 04 February 2013, he did have a positive screen for PTSD, but in
his subsequent appointment, he was not diagnosed with PTSD.

In a records review conducted at Arlington, VA on 20 April 2018, and by a 5-0 vote, the Board
determined that the discharge was too harsh 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 OBH, PTSD and TBI) and as a result it is improper. Accordingly, 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, Chapter 14-12a, 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: 23 June 2009

c. Separation Facts:

(1) Date of Notification of Intent to Separate: 3 June 2009

(2) Basis for Separation: The applicant was informed of the following reasons: for
wrongfully using marijuana on 23 April 2009

(3) Recommended Characterization: General (Under Honorable Conditions)

(4) Legal Consultation Date: On 3 June 2009, the applicant declined the opportunity
to consult with legal counsel
(5) Administrative Separation Board: NA

(6) Separation Decision Date / Characterization: 4 June 2009 / General (Under
Honorable Conditions)

4. SERVICE DETAILS:

a. Date / Period of Enlistment: 30 May 2006 / 3 years, 17 weeks

b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 120

c. Highest Grade Achieved / MOS / Total Service: E-5 / 13B1P, Cannon Crewmember /
3 years, 24 days

d. Prior Service / Characterizations: None

e. Overseas Service / Combat Service: SWA / Iraq (8 June 2007 to 15 July 2008)

f. Awards and Decorations: ARCOM, AAM-2, NDSM, GWOTSM, ICM-CS, NOPDR,
ASR, OSR, CAB

g. Performance Ratings: 1 July 2008 to 21 May 2009, Marginal

h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DA Form 2624,
dated 29 April 2009, reflects the applicant tested positive for THC 365 during an Inspection Unit
(IU) urinalysis testing conducted on 23 April 2009.

FG, Article 15, dated 21 May 2009, for wrongfully using marijuana between (24 March 2009 and
23 April 2009). The punishment consisted of reduction to E-4, forfeiture of $960 pay per month
for two months, and 45 days extra duty and restriction.

Negative counseling statement reference notification of possible separation.

i. Lost Time / Mode of Return: None

j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation,
dated 28 May 2009, shows the applicant was diagnosed with Axis I for cannabis dependence.
There was a note of no TBI or PTSD at the time. The applicant was psychiatrically cleared for
any administrative action deemed appropriated by his command, he had the mental capacity to
understand and participate in the proceedings, was mentally responsible, and he expressed no
interest or motivation to change behavior or become a productive trooper for further service.

Department of Veterans Affairs medical documents submitted by the applicant show he suffers
with chronic post-traumatic stress disorder, TBI, and depression following military combat.

5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; legal brief; statement from applicant;
Secretary Hagel PTSD Memo, dated 3 September 2014; Deputy Under-Secretary Carson
Memo, dated 24 February 2016; positive drug testing results memorandum, dated 6 May 2009;
certificates and awards; NCOER and ERB; character reference statements; Army Discharge
Review Board Memo, dated 29 February 2012; Veterans Affairs Medical Records; and DD Form
214.

6. POST SERVICE ACCOMPLISHMENTS: The applicant contends that since his discharge he has
experienced a really difficult adjustment period because of his undiagnosed PTSD.
Nevertheless, with assistance from the VA he has begun to receive the proper treatment which
allowed him to cope and treat his symptoms of PTSD. He worked for the St. Regis Hotel in Bal
Harbour, Florida for approximately five years and attended Keiser University where he received
an Associate’s Degree in Homeland Security in August 2013.

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, 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 through legal counsel requests that his general
(under honorable conditions) discharge to upgraded to honorable, that his narrative reason for
discharge be changed to a more appropriate less derogatory narrative, such as Secretarial
Authority, and that his reentry eligibility (RE) code be changed to a more proper and equitable
RE code. 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.

Furthermore, by violating the Army’s policy not to possess or use illegal drugs, the applicant
compromised the trust and confidence placed in a Soldier. The applicant, as a
noncommissioned officer, 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.

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 appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged
for drug offenses is “JKK” and the RE code is 4. The regulation further stipulates that no
deviation is authorized.

The applicant seeks relief contending, that his discharge was the result of Post-Traumatic
Stress Disorder that stemmed from events he experienced while serving a fourteen month
deployment to Iraq, which was the causation of the misconduct that caused his inequitable
separation. The applicant though legal counsel contends he was the victim of multiple injustices
and improprieties for a one time mistake. He was punished excessive and unnecessary. He
suffered from PTSD as a result of a combat tour in Iraq during Operation Iraqi Freedom from
2007 to 2008 and made the mistake of turning to drug usage, as opposed to seeking
professional help. He is aware of this mistake and is very remorseful for his poor decision. He
believes there are issues of both equity and propriety in this action. He has lived with being
separated from the military, knowing the unlimited potential he possessed as a Soldier. He
believes he should not have to live with the stigma of a general (under honorable conditions)
discharge, especially after selflessly serving his country as an exceptional Soldier for over three
years and a combat veteran for nearly eight years.

The applicant contentions were noted; however, evidence in the record shows separation action
was initiated against the applicant after he tested positive for marijuana. As noted this was
single incident; however, although a single incident, the discrediting entry constituted a
departure from the standards of conduct expected of Soldiers in the Army. The applicable Army
regulation states there are circumstances in which the conduct or performance of duty reflected
by a single incident provides the basis for a characterization. The applicant’s incident of
misconduct adversely affected the quality of his service, brought discredit on the Army, and was
prejudicial to good order and discipline.

The applicant contends his discharge was the result of Post-Traumatic Stress Disorder that
stemmed from events he experienced while serving a fourteen month deployment to Iraq,
however, the Report of Behavioral Health Evaluation in the applicant’s record, dated 28 May
2009, shows the applicant was diagnosed with Axis I for cannabis dependence. There was a
note of no TBI or PTSD at the time. The applicant was psychiatrically cleared for any
administrative action deemed appropriated by his command, he had the mental capacity to
understand and participate in the proceedings, was mentally responsible, and he expressed no
interest or motivation to change behavior or become a productive trooper for further service.

The independent medical documents submitted by the applicant from the Department of
Veterans Affairs show the applicant suffers with PTSD and several other medical issues and is
receiving treatment. However, the fact the applicant is receiving medical treatment for the
medical conditions that he may have suffered with while on active duty does not support a
conclusion that these conditions rendered the applicant unfit for further service at the time of his
discharge processing. The available medical evidence in the record is void of any indication
that the applicant was suffering from a disabling medical or mental condition during his
discharge processing that would have warranted his separation processing through medical
channels.

It should be noted, in accordance with AR 600-85, paragraph 3-8 titled self-referrals, which
states the applicant could have self-referred to the Army Substance Abuse Program (ASAP)
counseling center for assistance. 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. Likewise, he
has provided no evidence that he should not be held responsible for his misconduct.

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 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 20 April 2018,
and by a 5-0 vote, the Board determined that the discharge was too harsh 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 OBH, PTSD and TBI) and as a result it
is improper. Accordingly, 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,
Chapter 14-12a, 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, Chapter 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
AR20180001462
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