1. Applicant's Name: a. Application Date: 30 May 2019 b. Date Received: 10 June 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, he has a mental condition which was diagnosed by the Army and there is no justification for an other than honorable discharge for smoking marijuana. The applicant states, he made poor decisions in the Army and his mental disorder prevented him from being able to know the consequences of his actions. The applicant states, with proper health care, he could have had a great career. He was also suffering from spousal abuse at home and was seeking relief or an escape from his mounting problems. He is in the process of getting a divorce and they are not on speaking terms. In a records review conducted on 24 September 2021, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the applicant's length of service and the circumstances surrounding the discharge (IPV and OBHI) and as a result it is inequitable. Accordingly, 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 (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 24 April 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 February 2018 (2) Basis for Separation: The applicant was informed of the following reasons: Between on or about 7 October 2017 and on or about 6 November 2017, he used marijuana; between on or about 23 October 2017 and on or about 22 November, he used marijuana; and, on or about 19 January 2018, he violated an order. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 February 2018 (5) Administrative Separation Board: On 14 February 2018, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 11 April 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 February 2016 / 3 years, 25 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-3 / 91B10, Wheeled Vehicle Mechanic / 2 years, 2 months, 8 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 22 November 2017, for wrongfully using marijuana on or about 6 August 2017 and 6 September 2017. The punishment consisted of a reduction to E-1; forfeiture of $799 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Electronic Copy of DD Form 2624, dated 28 November 2017, reflects the applicant tested positive for THC 49 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 6 November 2017. Electronic Copy of DD Form 2624, dated 8 December 2017, reflects the applicant tested positive for THC 154 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 22 November 2017. Personnel Action form, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 17 April 2018. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 7 days (AWOL, 17 April 2018 - 24 April 2018) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 18 January 2018, reflects the applicant has no duty limitations due to behavioral health reasons. Soldier currently meets medical retention standards and is cleared for administrative action. Diagnoses: Unspecified Substance Use Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 2808; DD Form 2807-1; Separation Packet; and, 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 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 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 AMHRR indicates someone in the discharge process erroneously entered on the applicant's DD Form 214, block 12a "9 February 2016". The evidence of the record reflects the applicant enlisted on 8 February 2016. The applicant contends, he has a mental condition which was diagnosed by the Army and he made poor decisions due to his mental disorder. The applicant's AMHRR contains documentation that supports a diagnosis of unspecified substance use disorder. The record shows the applicant underwent a mental status evaluation (MSE) on 18 January 2018, which indicates the applicant had no duty limitations due to behavioral health reasons. Soldier currently met medical retention standards and was cleared for administrative action. The MSE was considered by the separation authority. The applicant contends with proper health care he could have had a great career. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends, he was suffering from spousal abuse at home and other problems. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. 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 DoD and VA medical records and found the applicant reported that he was a victim of Intimate Partner Violence (IPV) while on active duty. This is a potentially mitigating BH experience which may mitigate the applicant's discharge. (2) Did the condition exist or experience occur during military service? Yes. The applicant has reported he was a victim of Intimate Partner Violence (IPV) while on active duty. Military medical records also indicate he reported IPV while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. As there is an association between IPV and the use of illicit substances to self-medicate symptoms, there is an association between his history of IPV and his illicit use of marijuana on two separation occasions. As there is an association between IPV and oppositional behaviors, there is a nexus between his IPV and his violation of an order. (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 IPV is often associated with avoidance behavior, THC abuse, and missing extra duty. As a result, the ADRB applied liberal consideration and found that the BH conditions outweighed the cause for separation. b. Response to Contention(s): (1) The applicant contends, he has a mental condition which was diagnosed by the Army and he made poor decisions due to his mental disorder. The Board determined that this contention was valid and voted to upgrade the characterization of service. (2) The applicant contends with proper health care he could have had a great career. The Board considered this contention in board proceedings, and relief was granted based on mitigating health condition - IPV. (3) The applicant contends, he was suffering from spousal abuse at home and other problems. The Board determined that this contention was valid and voted to upgrade the characterization of service. c. The Board determined that the discharge was too harsh based on the applicant's length of service and the circumstances surrounding the discharge (IPV and OBHI) and as a result it is inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's IPV diagnosis is mitigating for his avoidance behavior, THC abuse, and missing extra duty. 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 AR20190009014 1