1. Applicant's Name: a. Application Date: 18 June 2019 b. Date Received: 24 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 general (under honorable conditions) and a narrative reason change. The applicant seeks relief contending, in effect, his discharge due to misconduct was erroneous and unfair. He and some fellow Soldiers were caught with pornographic material; however, he was young and did not understand the brevity of the situation. He tested positive for marijuana and knows it was wrong. He had just returned from Iraq and was suffering from post-traumatic stress disorder (PTSD) and he chose to self-medicate. Now that he knows how PTSD works, he believes it led to his poor decisions. He was a good Soldier and person before the tragedies of War stole his innocence and youth. In a records review conducted on 13 October 2021, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's length, 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, 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: 31 August 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 August 2009 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 27 April 2009 and 27 May 2009, the applicant wrongfully used marijuana. (3) Recommended Characterization: General, (Under Honorable Conditions) (4) Legal Consultation Date: 13 August 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 August 2009 / General, (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 March 2007 / 6 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B, Infantryman / 2 years, 5 months, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (15 November 2007 - 1 January 2009) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 13 November 2008, reflects the applicant violated a lawful general order on or about 4 October 2008, by wrongfully possessing pornographic material within the Multi-National Division-Bagdad area of responsibility. The punishment consisted of extra duty for 1 day. FG Article 15, dated 8 July 2009, reflects the applicant wrongfully used marijuana between on or about 27 April 2009 and 27 May 2009. The punishment consisted of reduction to private/E-1; forfeiture of $699.00 pay per month for two months, suspended, to be automatically remitted if not vacated before 12 January 2010; and extra duty and restriction for 45 days. A Mental Status Evaluation, dated 23 June 2009, reflects the applicant had the capacity to understand and participate in the evaluation and was mentally responsible. The evaluation did not reveal any psychiatric conditions or symptoms that would impair his ability to participate in the proceedings. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a Department of Veteran Affairs (VA), dated 11 June 2019, which reflects, in part, the applicant was granted a 70-percent service-connected disability rating for PTSD to include panic disorder with agoraphobia; major depressive disorder; and cognitive impairment effective 20 June 2018. The rating was increased from 30-percent effective 1 September 2009 and 50-perent effective 17 January 2012. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, Personal Statement-2, Department of Veteran Affairs (VA), Rating Decision, dated 11 June 2019, Medical Records, DD Form 214, Certificate of completion, Letter from VA, dated 28 June 2019, reflecting the applicant the Substance Abuse Residential Rehabilitation Program 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) 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. (5) 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. (6) 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. 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's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contends his discharge due to misconduct was erroneous and unfair. He and some fellow Soldiers were caught with pornographic material; however, he was young and did not understand the brevity of the situation. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The applicant also contends he tested positive for marijuana and knows it was wrong, but had just returned from Iraq and was suffering from PTSD and he chose to self-medicate. The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. The applicant further contends now that he knows how PTSD works, he believes his PTSD led to his poor decisions. The applicant's available record is void of a PTSD diagnosis. The applicant provides evidence from VA showing he was granted a granted a 70-percent service- connected disability rating for PTSD to include panic disorder with agoraphobia; major depressive disorder; and cognitive impairment effective 20 June 2018. The record reflects that on 23 June 2009, the applicant underwent a mental evaluation which reflected the applicant had the capacity to understand and participate in the evaluation and was mentally responsible. The evaluation did not reveal any psychiatric conditions or symptoms that would impair the applicant's ability to participate in the proceedings. The applicant states he was a good Soldier and person before the tragedies of War stole his innocence and youth. 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. 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 did not hold an in-service diagnosis. The applicant is service connected for combat related PTSD with additional diagnoses of MDD, GAD, Panic Disorder, Psychosis, Schizoaffective Disorder, and TBI with a variety of substance use disorders. (2) Did the condition exist or experience occur during military service? Yes. Applicant holds a service connection for combat related PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Based on liberal consideration, the applicant's service connected PTSD mitigates the applicant's drug abuse basis for separation. (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 such as PTSD with additional diagnoses of MDD, GAD, Panic Disorder, Psychosis, Schizoaffective Disorder, and TBI are often associated with the applicant's reason for discharge of wrongful use of marijuana. 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 discharge due to misconduct was erroneous and unfair. The applicant's service connected PTSD mitigates the basis for separation. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable. (2) The applicant contends he tested positive for marijuana and knows it was wrong, but had just returned from Iraq and was suffering from PTSD and he chose to self-medicate. The applicant is service connected for combat related PTSD and a variety of substance use disorders. Therefore, the substance use is medically mitigated. (3) Applicant contends he knows how PTSD works and believes his PTSD led to his poor decisions. The BH illnesses such as PTSD with additional diagnoses of MDD, GAD, Panic Disorder, Psychosis, Schizoaffective Disorder, and TBI are often associated with the applicant's reason for discharge of wrongful use of marijuana. Thus the Board determined that relief was warranted. (4) The applicant contends he was a good Soldier and person before the tragedies of war stole his innocence and youth. 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, to include combat service and the circumstances surrounding the discharge (OBHI and PTSD diagnoses). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had a BH condition, PTSD, which mitigated the applicant's basis for separation of marijuana 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 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 AR20190009260 7