1. Applicant's Name: a. Application Date: 23 April 2018 b. Date Received: 7 May 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable or general (under honorable conditions) and a narrative reason change. The applicant seeks relief contending, in effect, the discharge is inequitable because it was based on two failed urinalyses, which were a direct results of attempts at self-medication through the use of marijuana due to PTSD and TBI, which were diagnosed in-service. Given the August 2017 Kurta memorandum, liberal consideration should be given to veterans petitioning for discharge relief where application for relief is based in whole or in part on matters relating to mental health conditions including PTSD; TBI, etc. Per the memorandum, evidence of these conditions can include "substance abuse." An upgrade will allow medical benefits. The applicant's contentions are further detailed in an allied legal brief. Counsel states, based on the applicant's length of service, stellar work quality while in service, youth at the time of the misconduct, and the Kurta memorandum, the ADRB should grant an equitable remedy. The applicant does not deny the marijuana use; the applicant merely wants to see an honorable characterization applied to the time in service. The Board can look to similar cases for guidance. In one, a veteran was given a "General" discharge" with a narrative reasoning of "Drug Abuse" because of testing positive for cocaine. The ADRB amended that veteran's record to reflect an "Honorable" discharge and a narrative reasoning of "Secretarial Authority" based on the quality of service. In another case, the ADRB granted similar relief in citing that the veteran had served for three years and was in his 20's when the misconduct occurred. The applicant continues to encounter great difficulty in finding adequate work that will allow the applicant to support the family. 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 Adjustment Disorder with disturbance of emotions and conduct, Anxiety Disorder NOS, Cannabis-Related Disorder, Depression, Nicotine Dependence, Post-Concussion Syndrome, and PTSD. In summary, the applicant has a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 10 January 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service diagnoses of OBH, PTSD and TBI), and a prior period of honorable service. Therefore, 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, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 16 September 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 August 2008 (2) Basis for Separation: The applicant was informed of the following reasons: On divers occasions, he wrongfully used marijuana, he was disrespectful in language and deportment to a noncommissioned officer, and he disobeyed a direct order from a noncommissioned officer. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 5 August 2008 (5) Administrative Separation Board: On 5 August 2008, the applicant unconditionally waived consideration of his case before an administrative separation board. (6) Separation Decision Date / Characterization: 2 September 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 August 2007 / 5 years b. Age at Enlistment / Education / GT Score: 23 / GED / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 2 months, 4 days d. Prior Service / Characterizations: RA, 22 June 2005 - 27 August 2007 / HD e. Overseas Service / Combat Service: SWA / Iraq (16 August 2006 - 27 October 2007) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ASR, CIB, ICM-BSS g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 12 May 2007, for being disrespectful in language and in deportment toward SFC C, by saying "all you have to do is laundry and showers" and by rolling his eyes (24 March 2007); and, for willfully disobeying a lawful order to at ease (24 March 2007). The punishment consisted of a forfeiture of $381 pay; and, extra duty for 14 days. FG Article 15, dated 12 December 2007, for wrongfully using marijuana (between 1 and 30 November 2007). The punishment consisted of a reduction to E-1; forfeiture of $650 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Report of result of Trial, reflects the applicant was tried in a Summary Court-Martial on 8 July 2008. The applicant was charged with two specifications of violating 112a, UCMJ. The summary of offenses, pleas and findings: Specification 1: Wrongfully use marijuana between on or about 1 March 2008 and 31 March 2008. Guilty, consistent with the plea; and, Specification 2: Wrongfully use marijuana between on or about 31 March 2008 and 16 April 2008. Guilty, consistent with the plea. Sentence: To be confined for 20 days. Several Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 20 days (Military Confinement, 8 July 2008 - 28 July 2008) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 15 May 2008, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Rule out substance use disorder, rule out anxiety disorder. The applicant provided copies of his active duty medical records, which reflect the applicant had a provisional diagnosis of: Mild TBI, Migraine New Onset. The applicant was also treated for: Nicotine dependence; Depression; Anxiety Disorder, NOS, Cannabis-Related Disorders; Adjustment Disorder with Disturbance of Emotions and Conduct; PTSD; and, Post-concussion Syndrome. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied legal brief and all listed enclosures. 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 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 12c, misconduct (serious offense). 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 under other than honorable conditions discharge to honorable or general (under honorable conditions) and a narrative reason change. The applicant's record of service, 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. 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 narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, 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 (Serious Offense)," and the separation code is "JKQ"." 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 that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The applicant contends that he was very young and immature at the time. The record confirms the applicant's youth at the time of enlistment and an apparent lack of maturity. The record also shows the applicant's discrediting entries were incidents of a minor nature. While the applicant's misconduct and poor duty performance were a clear departure from acceptable Army standards, it appears the offenses were partially mitigated by youth and immaturity. The applicant's service record contains documentation that supports a diagnosis of in service Depression; Anxiety Disorder, NOS, Cannabis-Related Disorders; Adjustment Disorder with Disturbance of Emotions and Conduct; PTSD; and, Post-concussion Syndrome; 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 15 May 2008, 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 other Soldiers with similar offenses were granted relief. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 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 him medical benefits. However, eligibility for veteran's benefits to include medical benefits, 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 third party statements provided with the application speak highly of the applicant's performance. They all recognize his good performance while in the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 10 January 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service diagnoses of OBH, PTSD and TBI), and a prior period of honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 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 / 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 AR20180006853 1