1. Applicant's Name: a. Application Date: 22 March 2019 b. Date Received: 22 April 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and to change the narrative reason for discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant's discharge was inequitable because the policies and procedures under which the applicant was discharged have changed materially. The Kurta and Hagel Memoranda provide remedies for inequitable discharges for veterans separated under previous regulations. The applicant demonstrated during service that the applicant was suffering from service-connected PTSD, mental health issues, and TBI. The THC use began at the end of a combat tour in Afghanistan. The applicant used THC to cope with the stress and mental anguish incurred from the combat tours in Iraq and Afghanistan. The applicant's mental anguish stems from witnessing charred bodies, suicides, and IED casualties and suffers from the physical effects of being in close proximity to numerous IED blasts. The applicant reported symptoms of being dazed, confused, or seeing stars. After the explosions, the applicant experienced memory problems, irritability, headaches, and sleep problems. On 15 August 2015, the applicant was diagnosed with PTSD and TBI because of the experiences in OIF and OEF, and the VA determined a service-connected disability for PTSD with mild memory loss associated with traumatic brain injury at 70 percent disability rating. The disciplinary infractions for the use of marijuana were desperate attempts to self-treat severe PTSD symptoms. Sufficient bases clearly show that the ADRB must grant the applicant relief by changing the nature of discharge from a General (Under Honorable Conditions) to a fully Honorable discharge and to change the narrative reason from "Misconduct (Drug Abuse) to "Secretarial Authority." The relief requested is warranted due to the minor, non-premeditated, nature of the applicant's misconduct, and due to the aforementioned mitigating circumstances and the severity of undiagnosed service-connected PTSD. The applicant was also discharged 12 days prior to the ETS date. 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, Cannabis Abuse, Spice Abuse, and Alcohol Abuse. The applicant is 70% service-connected for PTSD from the VA. The VA has also diagnosed the applicant with Major Depressive Disorder. 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 8 April 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. post-service diagnosis of PTSD), and post-service accomplishments. 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), 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: 16 December 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 October 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 27 January 2010, the applicant tested positive resulting from a command-directed urinalysis for marijuana, a controlled substance. The positive results indicate wrongful use of marijuana between 28 December 2009 and 27 January 2010. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 October 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 28 October 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 August 2006 / 4 years, 17 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 3 months, 17 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (1 February 2007 to 15 December 2007), Afghanistan (12 March 2010 to 5 June 2010) f. Awards and Decorations: AAM; AGCM; NDSM; ACM-2CS; ICM-CS; GWOTSM; ASR; OSR; NATO MDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 8 March 2010, indicates the specimen collected on 27 January 2010, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "THC." FG Article 15, dated 6 April 2010, for wrongfully using marijuana between 24 December 2009 and 27 January 2010. The punishment consisted of a reduction to E-1, forfeiture of $723 pay per month for two months, 45 days of extra duty, and 45 days of restriction (suspended). An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 23 August 2010, indicates the specimen collected on 29 July 2010, on an "IU" (Inspection, Unit) basis, provided by the applicant, tested positive for "THC." FG Article 15, dated 21 September 2010, for wrongfully using marijuana between 30 July 2010 and 29 August 2010. The punishment consisted of forfeiture of $723 pay per month for two months. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation, dated 19 October 2010, reports and "AXIS I" diagnosis of an "Adjustment disorder with Disturbance of Emotions and Conduct," and that the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. Report of Medical History, dated 3 November 2010, indicates the applicant and examiner noted behavioral health issues. Applicant's documentary evidence: VA Rating Decisions at pages 130, 140, 155, 163, 165, and 167, show the applicant received an evaluation of 70 percent for PTSD with mild memory loss associated with TBI. (The applicant's behavioral health issues/diagnoses are documented throughout the evidence he provided.) 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 22 March 2019, with counsel-authored brief with a list of attachments in exhibits format. 6. POST SERVICE ACCOMPLISHMENTS: The counsel, on behalf of the applicant, states in effect, that since the applicant's discharge, he has been steadily employed in a variety of jobs, and that he is currently attending classes with a university in pursuance of a bachelor's degree in sports management. 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, paragraph 14-12c(2), 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 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. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. 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 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 his discharge is inequitable based on documented behavioral health issues involving an undiagnosed PTSD caused by his experiences in war, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post- traumatic stress disorder and traumatic brain injury symptoms existed, and the applicant 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 contends that since leaving the Army he has been employed continuously since, and he is currently attending classes with a university. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization 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. 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(2) is "Misconduct (Drug Abuse)," and the separation code is JKK. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 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 8 April 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. post-service diagnosis of PTSD), and post-service accomplishments. 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), 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 AR20190006492 4