1. Applicant's Name: a. Application Date: 12 June 2019 b. Date Received: 14 June 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 conditions. The applicant seeks relief contending, in effect, while deployed to Afghanistan the applicant suffered injury for which he was prescribed Percocet and continued to perform missions for the remainder of the deployment. Once the applicant returned to Fort Bragg, he was attached to a unit was staffed by Soldiers who were using sick call as a means to get out of work and were directed to return to duty without proper care. Later, the applicant came down on orders to reclassify to a combat medic at Fort Sam Houston. Once in-processed, they were seen by medical and the decision was made for the applicant to separate. While out-processing, his Fort Bragg unit contacted the applicant's new command for a failed drug test for pain medication. The applicant states his discharge was then changed to general despite command disapproval. The applicant had completed his initial enlistment without incident. In a records review conducted on 3 November 2021, 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, and the circumstances surrounding the discharge (OBHI and PTSD diagnoses). 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. 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: 27 March 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 March 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used Oxymorphone (29 November 2011). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 March 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 March 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 November 2011 / 9 months / The applicant extended the most recent enlistment by a period of 9 months on 22 November 2011, giving the applicant a new ETS of: 14 June 2012. b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92R10, Parachute Rigger / 4 years, 2 months, 13 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (29 May 2009 - 15 May 2010) f. Awards and Decorations: AAM, NATOMDL, AGCM, OSR, ASR, NDSM, ACM-2CS g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Statement of Medical Condition, dated 27 January 2012, reflects the applicant had heightened levels of anxiety which was significantly interfering with his ability to adjust to the structure and demands required of being in the military. He is expressing continuous feelings of not wanting to be in the Army, as a result of difficulty coping emotionally to the changes. He is having emotional distress, not sleeping, and has reported bouts of extreme social withdraw. He is being treated for a diagnosis distress of and Adjustment with mood Disorder swings with and high Anxiety. His failure to respond to current treatment, and his continual emotional disturbances; which are resulting in his overall withdrawal from productive behavioral patterns are setting the stage for which possible are resulting dangerous in his future overall behaviors. There are no current suicidal or homicidal ideation, intent and /or plan. They recommend the applicant be administratively separated from the Army in accordance Paragraph 5-17 (Other Designated Physical or Mental Conditions. The applicant is psychiatrically cleared for any administrative action deemed appropriate by the command. Positive urinalysis test, dated 30 January 2012, reflects the applicant tested positive for Oxymorphone during an Inspection Other (IO) urinalysis testing, conducted on 29 November 2011. FG Article 15, dated 7 March 2012, for without authority, fail to go at the time prescribed to appointed place of duty 14 February 2012; and, for wrongfully using oxymorphone (between 27 and 29 November 2011). The punishment consisted of a reduction to E-3; forfeiture of $990 pay per month for two months (suspended); and, extra duty and restriction for 30 days. Three Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Statement of Medical Condition , dated 27 January 2012, reflects the applicant had heightened levels of anxiety which was significantly interfering with his ability to adjust to the structure and demands required of being in the military. He is expressing continuous feelings of not wanting to be in the Army, as a result of difficulty coping emotionally to the changes. He is having emotional distress, not sleeping, and has reported bouts of extreme social withdraw. He is being treated for a diagnosis distress of and Adjustment with mood Disorder swings with and high Anxiety. His failure to respond to current treatment, and his continual emotional disturbances; which are resulting in his overall withdrawal from productive behavioral patterns are setting the stage for which possible are resulting dangerous in his future overall behaviors. There are no current suicidal or homicidal ideation, intent and /or plan. They recommend the applicant be administratively separated from the Army in accordance Paragraph 5-17 (Other Designated Physical or Mental Conditions). The applicant is psychiatrically cleared for any administrative action deemed appropriate by the command. The applicant provided a copy of a VA disability rating decision, dated 15 May 2019, reflecting the applicant was rated 50 percent disability for PTSD (also claimed as depression and anxiety disorder). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Public Law 111-377, Section 205 amended title of the United States Code Section 3108(b); VA Form 20-5455; VA Medical Records; DD Form 214. 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), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Service member discharged from active military service within 15 years of the Service member'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) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (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 prescribes 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. 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 "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). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years' active Federal service. Eligibility: Ineligible for enlistment. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends his previous command contacted his new command for a failed drug test, which resulted in his general discharge despite his command's disapproval. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends he was prescribed Percocet for an injury and now has been diagnosed with PTSD. The record shows the applicant underwent a mental status evaluation (MSE) on 27 January 2012, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. 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. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records. The applicant held in-service diagnoses of Generalized Anxiety Disorder (GAD), Anxiety Disorder NOS, Opioid and Benzodiazepine Abuse, and Adjustment Disorder. Post-service, the applicant is service connected for PTSD, specific trauma unknown, with additional diagnoses of GAD, Unspecified Depressive Disorder, and Opioid and Alcohol Use Disorders. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Generalized Anxiety Disorder (GAD), Anxiety Disorder NOS, Opioid and Benzodiazepine Abuse, and Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. If the Board believes the applicant's service connected PTSD relates to combat, and per liberal consideration and nexus between trauma and substance, the basis for separation is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that mitigating BH illnesses of post service PTSD, Generalized Anxiety Disorder (GAD), Anxiety Disorder NOS, Opioid and Benzodiazepine Abuse, and Adjustment Disorder are often associated with the applicant's reason for discharge for drug abuse. As a result, the ADRB applied liberal consideration and found that the BH conditions outweighed the basis for separation. b. Response to Contention(s): (1) The applicant contends his former command contacted his new command for a failed drug test for pain medication and discharge initiated. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the mitigating BH conditions of PTSD, GAD, Anxiety Disorder NOS, Opioid Benzodiazepine Abuse and Adjustment Disorder for misconduct of drug abuse. (2) The applicant contends he was diagnosed with PTSD. The Board determined that this contention was valid and voted to upgrade the characterization of service to Honorable based upon mitigating BH conditions. (3) The applicant contends he had good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (OBHI and PTSD diagnoses). 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. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had BH conditions of PTSD, GAD, Anxiety Disorder NOS, Opioid Benzodiazepine Abuse and Adjustment Disorder which mitigated the applicant's misconduct for drug abuse. 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 RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 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: No Change 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 AR20190008813 2