1. Applicant's Name: a. Application Date: 18 April 2019 b. Date Received: 17 May 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, that he has been awarded 70 percent service connected disabilities and that liberal consideration for PTSD and mental health conditions should be made. In a records review conducted on 27 August 2021, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (PTSD diagnosis), and 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), with a corresponding separation code of JKN, and the reentry code to RE-3. Please see Section 9 of this document for more detail regarding the Board's decision. (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: 20 June 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 November 2010 (2) Basis for Separation: The applicant was informed of the following reasons: for wrongfully using a naturally occurring substance for the purpose of inducing stupefaction of the central nervous system at or near Fort Riley, Kansas, which was in violation of AR 600-85, paragraph 4-2p, dated 2 December 2009 (this was in violation of Article 92, UCMJ). The applicant also wrongfully possessed a naturally occurring substance with the intent of improper use to create an impaired state of mind at or near at or near Camp Taji, Iraq, which was a violation of General Order Number 1, United States Forces-Iraq, paragraph 3d(1), dated 1 January 2010 (which was in violation of Article 92, UCMJ). (3) Recommended Characterization: The unit commander recommended that the applicant be retained in service under the United States Army. It was noted in the commander's notification memorandum to the applicant that the intermediate commander and the separation authority were not bound by his recommendation as to characterization of service. The separation authority could direct that his service be characterized as General (Under Honorable Conditions) or retain him. (4) Legal Consultation Date: 29 November 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 11 December 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 December 2008 / 4 years b. Age at Enlistment / Education / GT Score: 19 / GED / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A10, Automated Logistical Specialist and 42A10, Human Resources Specialist / 4 years, 1 month, 6 days d. Prior Service / Characterizations: ARNG, 15 May 2007 to 5 June 2007 / NA ADT, 6 June 2007 to 13 October 2007 / NIF ARNG, 14 October 2007 to 3 December 2008 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Iraq (15 March 2010 to 23 December 2010) f. Awards and Decorations: NDSM, ICM-CS, GWOTSM, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Memorandum for SPC K.D. (the applicant), dated 24 October 2010, signed by Lieutenant General R.W.C., "Grant of Testimonial Immunity and Order to Testify." It was noted that the applicant must provide truthful statements to investigators, prosecuting authorities and defense counsel concerning his K2 use as well as the use, distribution, and sale by PFC C.R. The applicant was further ordered to provide truthful statements regarding any K2 or drug activity in and around Camp Taji, Iraq that he witnessed or learned of during his deployment. Several counseling statements in reference to the applicant's duty performance/development. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and a letter dated 18 April 2019 from the Department of Veterans Affairs indicating the applicant has been awarded 70 percent service connected disability. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides 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), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides 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, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification 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. (2) 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. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (7) 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. e. 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). f. 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." 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's AMHRR record of service, the issues and documents submitted with the 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 indicates the separation action was initiated against the applicant for wrongfully using a naturally occurring substance for the purpose of inducing stupefaction of the central nervous system at or near Fort Riley, Kansas, which was in violation of AR 600-85, paragraph 4-2p, dated 2 December 2009 (this was in violation of Article 92, UCMJ). The applicant also wrongfully possessed a naturally occurring substance with the intent of improper use to create an impaired state of mind at or near at or near Camp Taji, Iraq, which was a violation of General Order Number 1, United States Forces-Iraq, paragraph 3d(1), dated 1 January 2010 (which was in violation of Article 92, UCMJ). The applicant seeks relief contending that he has been awarded 70 percent service connected disabilities and that liberal consideration for PTSD and mental health conditions should be made. The applicant's contentions were noted; the fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered 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 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 at the time of discharge. Additionally, the ADRB is not bound by U.S. Department of Veterans Affairs (VA) decisions, nor do VA decisions have any bearing on the decisions of the ADRB. Decisions reached by the U.S. Department of Veterans Affairs (VA) to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Department of the Army. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Army when determining a member's discharge characterization. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. Applicant has been diagnosed with combat-related PTSD, a potentially mitigating BH condition. (2) Did the condition exist or experience occur during military service? Yes. The VA has established that the applicant developed PTSD while in the military. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. As there is an association between PTSD and use of illicit drugs to self-medicate PTSD symptoms, there is a nexus between applicant's PTSD and his wrongful use/possession of an illicit substance. (4) Does the condition or experience outweigh the discharge? Yes. Under Liberal Consideration, applicant's diagnosis of PTSD outweighs his discharge characterization. (5) The applicant seeks relief contending that he has been awarded 70 percent service connected disabilities and that liberal consideration for PTSD and mental health conditions should be made. The Board determined that this contention was valid, fell under the guidance for liberal consideration, and voted that relief was warranted. b. The Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (PTSD diagnosis), and prior period of honorable service. c. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigated the drug use for which the applicant was discharged. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190008674 1