AR20180001538

1. Applicant’s Name:

a. Application Date: 19 December 2017

b. Date Received: 20 December 2017

c. Counsel:

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an
upgrade of his general (under honorable conditions) discharge to honorable, a narrative reason
change and a reentry (RE) code change. The applicant seeks relief contending, in effect, the
applicant’s administrative separation that led to his second discharge was wholly improper and
inequitable. The applicant deserves an honorable discharge for the many years of service in
which he served his command, his branch of service, and his country honorably. During the
applicant’s first enlistment, he achieved the rank of Specialist. After finishing basic training, the
applicant was assigned to the 10th Mountain Division, where as a junior Soldier, he quickly
asserted himself as an adept leader and he was assigned to a position on the scout platoon. The
applicant is a veteran of both Operation Enduring Freedom and Operation Iraqi Freedom, and he
has received numerous awards for his accomplishments to include the Purple Heart.

After an unnaturally hard seven years, the applicant needed to get rid of the pain from his first
wife’s rape early in his career, the life altering experiences of combat deployments, near death
experiences, the suicide of his first wife, the death of his father, and the adulterous actions of his
second wife. In an attempt to rid himself of the daily mental anguish, the applicant tried meth for
the first time. Although he did not know at the time, his difficulty coping with the events in his life
and his drug use tied to an underlying problem that until this time had gone undiagnosed: the
applicant was suffering from the effects of PTSD as well as TBI that he incurred during his first
enlistment.

The decision to award the applicant a general (under honorable conditions) discharge was both
improper and inequitable because: (1) his on-going, and voluntary substance abuse treatment
at the time of his failed urinalysis precluded the results of that urinalysis being used against him;
(2) his PTSD should have prevented him from ever being allowed to reenlist and return to active
service; and, (3) the applicant’s tragic home life, coupled with his PTSD, had a significant
negative effect on his ability to serve.

The applicant’s less than honorable discharge coupled with drug use as the narrative reason for
separation does not accurately reflect his entire period of service. Because his service record is
evidence of seven years of exemplary and distinguished service to the country as a Ranger and
Special Forces Soldier in the Army, the applicant is entitled to an honorable discharge. The
applicant suffers and has suffered from PTSD since his first enlistment, making the struggles he
was facing both at work and at home, often seem insurmountable.

One need only look at the applicant’s continued efforts to support and advocate for other former
servicemen and women even after he has long since dropped his pack and been forced to step
out of uniform. He states his conduct since his separation from the Army has been exemplary
and demonstrates a level of service, selflessness and esprit de corps that has long been a
foundational pillar of the United States Armed Forces. He has thrived in both his professional
and personal capacities, and more importantly he has served as a model representative for his
country, his branch of service and his family since he left active duty. The applicant remarried in
2017, and welcomed his third child into the world in the summer of 2017. He currently lives with
his wife and children in Arizona and he has accomplished a plethora of academic achievements.
He subsequently started his own private company teaching CPR and Advanced Cardiac Life
Support and is pursuing his degree in Nursing.

Per the Board’s Medical Officer, based on the information available for review at the time to
include the military electronic medical record, there is insufficient evidence to determine if the
applicant had a medical or behavioral health condition that was mitigating for the offenses which
led to his separation from the Army. A review of electronic military medical records indicated
diagnoses of an Adjustment Disorder, Alcohol Abuse, Anxiety, Depression, Marital Problem,
and PTSD. Behavioral health treatment primarily consisted of services from FAP (starting in
2006) and ASAP (starting in 2014) for methamphetamine dependence. Behavioral health
treatment focused on anger issues and disruptive conduct that was tied to marital discord.
Medical notes indicated leadership was concerned about his explosive anger and potential to
act out aggressively, particularly towards his wife. Medical note dated 7 February 2014 indicated
SM was command referred to ASAP after admitting to his Command that he had been using
meth after taking a unit US on 3 February 2014. SM reported his command requested the UA
after SM was stopped at the gate, had his vehicle searched and found in possession of a
firearm and drug detox it. Medical note dated 21 February 2014 indicated SM was seen in the
ED after being escorted in for having homicidal ideation towards his wife. Medical note dated
March 2014 indicated SM was acting paranoid, physically aggressive (kicking doors), hitting
walls, vague threats, and making erratic statements and behavior. He was taken to ED and did
not calm down until MPs came with a dog. In summary, medical notes reflect significant
treatment for substance use and problems related to marital discord and PTSD. However, the
basis of separation was not clearly identified.

In a records review hearing conducted at Arlington, VA on 28 March 2018, and by a 5-0 vote,
the Board denied the request upon finding the separation was both proper and equitable.

(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 / General (Under Honorable Conditions)

b. Date of Discharge: 9 October 2014

c. Separation Facts:

(1) Date of Notification of Intent to Separate: NIF

(2) Basis for Separation: NIF

(3) Recommended Characterization: NIF

(4) Legal Consultation Date: NIF

(5) Administrative Separation Board: Based on the separation authority’s decision
memorandum, an administrative separation board convened on 15 July 2014 and
recommended that the applicant be discharged with a characterization of service of general
(under honorable conditions).

In September 2014, the separation authority approved the findings and recommendations of the
administrative separation board and directed the applicant’s discharge with a characterization of
service of general (under honorable conditions).

(6) Separation Decision Date / Characterization: In September 2014, the separation
authority approved the findings and recommendation of the administrative separation board and
directed the applicant’s separation under the provisions of AR 635-200, Chapter 14-12c (2),
Misconduct (Drug Abuse). / General (Under Honorable Conditions)

4. SERVICE DETAILS:

a. Date / Period of Enlistment: 5 July 2011 / 5 years

b. Age at Enlistment / Education / GT Score: 30 / 1 year college / 122

c. Highest Grade Achieved / MOS / Total Service: E-6 / 18D2V 5W, Special Forces
Medical Sergeant / 11 years, 9 months, 10 days

d. Prior Service / Characterizations: RA, 30 January 2002 – 31 October 2005 / HD
RA, 1 November 2005 – 15 September 2006 / HD
RA, 28 September 2007 – 4 July 2011 / HD

e. Overseas Service / Combat Service: SWA / Afghanistan (7 January 2005 – 7 April
2005), Iraq (5 October 2005 – 9 January 2006)

f. Awards and Decorations: PH, ARCOM-V, AAM-2, AGCM-3, NDSM, ACM-A,
GWOTSM, ICM-CS, ASR, CIB

g. Performance Ratings: 1 June 2009 – 31 August 2012 / Among The Best
1 September 2012 – 28 March 2013 / Fully Capable
29 March 2013 – 30 September 2013 / Fully Capable

h. Disciplinary Action(s) / Evidentiary Record:

FG Article 15, dated 28 August 2013, for behaving with disrespect toward Major G, by
questioning Major G’s decisions, the tone and inflection of his voice, and presenting a
threatening demeanor by sliding to the edge of his chair, grasping the ends of the armrest and
planting his feet as if he were going to push off and lunge forward. The punishment consisted of
forfeiture of $769 pay (suspended); extra duty and restriction for 14 days; and, an oral
reprimand.

Record Of Supplementary Action Under Article 15, UCMJ, dated 19 February 2014, reflects the
suspended portion of the punishment was vacated because the applicant wrongfully used
methamphetamine between on or about 29 August 2013 and 3 February 2014.

Electronic Copy of DD Form 2624, dated 20 February 2014, reflects the applicant tested
positive for DAMP 871 (amphetamine), DMETH 12677,> LOL (methamphetamine) during an
Probable Cause (PO) urinalysis testing, conducted on 3 February 2014.

FG Article 15, dated 28 February 2014, for wrongfully using amphetamine and
methamphetamine (between 31 January and 3 May 2014). The punishment consisted of a
reduction to E-5; forfeiture of $1,538 pay per month for two months (suspended); extra duty and
restriction for 45 days; and, an oral reprimand.

i. Lost Time / Mode of Return: None

j. Diagnosed PTSD / TBI / Behavioral Health:

Fort Carson, medical record, dated 13 January 2014, reflects the applicant was diagnosed with
an Adjustment Disorder with Anxious Mood. The applicant admitted to the attending physician
that he had been abusing a substance for the past year and that he had 12 days of sobriety.

Fort Carson Medical Department Activity memorandum, dated 5 August 2014, reflects that the
applicant had not been able to work in his MOS for one year. He had been clean and sober for
four months and he continued to have signs and symptoms of PTSD that prevent him from
being able to function in any capacity in the military. In the staff psychiatrist’s opinion his PTSD
did cause him to fall below retention standard.

Letter from Licensed Psychologist. MM, PH.D., reflects the applicant is a 50 percent service
connected for PTSD student veteran who was referred by Professor K H, Director of the
Veterans Advocacy Law Clinic at the University of Arizona to interview this veteran, review
military records of the applicant and render an opinion regarding his diagnosis of post-traumatic
stress disorder versus personality disorder caused by drug use. The psychologist opined that
the applicant is a victim of being misdiagnosed as demonstrated by recent studies (e.g., Tayyeb
& Greenburg, 2017) and GAO report (Comptroller Gen. of the U.S., FPCD-80-13, Military
Discharge Policies & Practices Result In Wide Disparities: Congressional Review Is Needed,
(1980). Such misdiagnosis is the reason for the “Fairness for Veterans Act, 2016” (RR. 4683,
114th Cong., 2016), which if the applicant’s case is reviewed under this standard would clearly
conclude that he has suffered from PTSD and not a “personality disorder due to substance
use.”

5. APPLICANT-PROVIDED EVIDENCE: The applicant provided a DD Form 293 with allied legal
brief and the enclosures listed in the brief.

6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has thrived in both his
professional and personal capacities, and more importantly he has served as a model
representative for his country, his branch of service and his family since he left active duty. The
applicant remarried in 2017, and welcomed his third child into the world in the summer of 2017.
He has accomplished a plethora of academic achievements; subsequently started his own
private company teaching CPR and Advanced Cardiac Life Support; and, he is pursuing his
degree in Nursing.

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 counsel, requests an upgrade of his general
(under honorable conditions) discharge to honorable, a narrative reason change and a reentry
(RE) code change. The applicant’s available record of service, the issues and documents
submitted with his application were carefully reviewed.

The applicant’s record is void of the specific facts and circumstances concerning the events
which led to his discharge from the Army. However, the applicant’s record does contain a
properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which
was authenticated by the applicant’s signature.

The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200,
Chapter 14, paragraph 14-12c (2), by reason of Misconduct (Drug Abuse), with a
characterization of service of General (Under Honorable Conditions) Barring evidence to the
contrary, it appears that all requirements of law and regulation were met and the rights of the
applicant would have been protected throughout the separation process.

The applicant, as a NCO, 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 applicant’s contentions about his on-going, and voluntary substance abuse treatment at the
time of his failed urinalysis precluded the results of that urinalysis being used against him, were
carefully considered. However, there is insufficient evidence available in the official record to
make a determination upon the applicant’s quality of service. Moreover, there is a presumption
of regularity in the conduct of governmental affairs which is applied in all Army discharge
reviews unless there is substantial credible evidence to rebut the presumption. There is no
evidence in the record, nor has the applicant produced any evidence, to support a change to the
characterization of service granted. The applicant’s statements alone do not overcome the
presumption of government regularity and the application contains no documentation or further
evidence in support of this request for an upgrade of the discharge.

The applicant contends the narrative reason for the discharge should be changed. However,
the applicant was separated under the provisions of Chapter 14, paragraph 14-12c (2), AR 635-
200 with a general (under honorable conditions) discharge. The narrative reason specified by
Army Regulations for a discharge under this paragraph is “Misconduct (Drug Abuse),” and the
separation code is “JKK.” Army Regulation 635-5, Separation Documents, governs preparation
of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in
block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables
2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further
stipulates that no deviation is authorized. There is no provision for any other reason to be
entered under this regulation.

The applicant contends the VA has granted him a service connected disability for PTSD; and, it
was this undiagnosed condition that affected his behavior and ultimately led to his discharge.
The applicant provided a copy of his active duty medical record, dated 13 January 2014, which
reflects the applicant was diagnosed with an Adjustment Disorder with Anxious Mood.
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 applicant’s
service record is void of a mental status evaluation. It appears the applicant’s chain of
command determined that he knew the difference between what was right and wrong.

The applicant contends his less than honorable discharge coupled with drug use as the
narrative reason for separation does not accurately reflect his entire period of service.
However, the applicant’s characterization of service reflects the period under review and not his
entire active duty service. The discrediting entries constituted a departure from the standards of
conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part,
stipulates there are circumstances in which the conduct or performance of duty reflected by a
single incident provides the basis for a characterization.

The applicant contends that he had good service which included two combat tours. 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 he was having family issues that affected his behavior and
ultimately caused him to be discharged. However, 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 Army Discharge Review Board is authorized to consider post-service factors in the
recharacterization of a discharge. However, there is no law or regulation which provides an
unfavorable discharge may be upgraded based solely on the passage of time or good conduct
in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent
such matters provide a basis for a more thorough understanding of the applicant’s performance
and conduct during the period of service under review, is considered during Board proceedings.
The Board reviews each discharge on a case-by-case basis to determine if post-service
accomplishments help demonstrate previous in-service misconduct was an aberration and not
indicative of the member’s overall character.

If the applicant desires a personal appearance hearing, it will be his responsibility to meet the
burden of proof and provide the appropriate documents (i.e., the discharge packet) or other
evidence sufficient to explain the facts, circumstances, and reasons underlying the separation
action, for the Board’s consideration because they are not available in the official record.

Based on the available record, the discharge was consistent with the procedural and
substantive requirements of the regulation, was within the discretion of the separation authority
and that the applicant was provided full administrative due process.

9. BOARD DETERMINATION: In a records review hearing conducted at Arlington, VA on 28 March
2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both
proper and equitable.

10. BOARD ACTION DIRECTED:

a. Issue a new DD-214/Issue new Separation Order: No

b. Change Characterization to: No Change

c. Change Reason to: No Change

d. Change Authority to: No Change

e. Change SPD Code to: No Change

f. Change 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
AR20180001538
5