1. Applicant's Name: a. Application Date: 22 July 2019 b. Date Received: 25 July 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, he is writing this supporting statement in the hopes of having his general (under honorable conditions) discharge, changed to honorable. In October 1999 while stationed in Hawaii as a UH-60 Blackhawk helicopter crew chief/repairer, he was badly injured while working on an aircraft. He was transferred by medical helicopter to Tripler Hospital in Honolulu, and was diagnosed with a major concussion and back injuries. He recovered and returned to servicing and repairing aircraft for his unit. Throughout the rest of his Military career he was on several different medical profiles related to his previous back injuries. In December 2002 he states he was reassigned to Fort Carson, CO, where he was informed, his unit was to be deployed to Iraq within several months. Once deployed they were responsible for rescuing over 700 casualties with an 85% readiness to complete their mission. He states they tragically lost 7 soldiers and 3 aircraft in their year of deployment. While deployed and just prior to deployment, his back injuries worsened. Feeling a sense of wanting to complete his six-year enlistment, he states he pushed himself through severe back pain. Upon returning Stateside he was put on permanent profile for his back and knee injuries. He wasn't able to work on aircraft due to these injuries. Being one of three Specialists promotable in his unit, he was offered E-5 sergeant and $40,000 bonus for 4 extra years of service, which he turned down due to his permanent profile for his back injuries. He was informed that his unit's next deployment wouldn't happen for a year, which he thought would be great because that would put him within his ETS window of discharge and completion of his active obligation. That order was changed and his unit was returning to Iraq in 8 months. Upon hearing this news, he states he immediately went to his new commander on several different occasions due to his back injuries and permanent profile barring him from working on aircraft, requesting could he ETS after his six-year enlistment was complete. Applicant's commander's reply was "he didn't care and he needed him and the other two Specialists for their next deployment". Applicant states, again he informed his commander of his severe back injuries and his commander's response was, "well you won't be assigned a weapon, wouldn't be required to wear flak vest or a Kevlar helmet." He then asked his commander what would his mission be while deployed, his commander's answer was "he would be managing aircraft maintenance but not physically working on them." He responded by informing his commander it would extremely dangerous for him to return to Iraq without said equipment. His commander's response was "he didn't care." Devastated upon hearing this and going through marital issues dealing with the idea of going to Iraq without a weapon or body protection applicant went into a deep depression and stress. He felt like the Army was turning their backs on a good Soldier who didn't want to go back only because of his back injuries and without proper equipment, not to mention he was about 3 months from his original ETS date. He states he began drinking heavily thinking he would be killed or unable to defend himself in a hostile country. He states his wife also threatened to leave and take the children if he deployed to Iraq a second time. On one of his drinking episodes he ate brownies that contained marijuana. A month later he tested positive. He was stripped of his Specialist rank and reduced to an E-1, private. One month later his unit deployed to Iraq and he stayed behind. He was discharged from the Army 2 days before his ETS date 28 February 2005. He never, throughout his entire enlistment, had ever used marijuana. He states this was a horrible slip up due to the stress he was under. He has endured two back surgeries since being discharged and now has a total disability rating of 80% due to his back and knee injuries associated with his service to this country. In a records review conducted on 17 December 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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-3 / General (Under Honorable Conditions) b. Date of Discharge: 28 February 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 February 2005 (2) Basis for Separation: The applicant was informed of the following reasons: Wrongfully used marijuana (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 February 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 8 February 2005 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 February 1999 / 6 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-4 / 15T10, UH-60 Helicopter Repairer / 5 years, 11 months, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Hawaii, SWA / Kuwait (1 April 2003 - 15 April 2003), Iraq (1 March 2003 - 15 April 2004) f. Awards and Decorations: AGCM, NDSM, GWOTEM, GWOTSM, ASR, OSR, ARCOM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 22 November 2004, for wrongfully using marijuana on or about 11 May 2004, and failing to go to his appointed place of duty, failed to be at his appointed place of duty on 14 May 2004, 1 June 2004, and 23 September 2004; and between on or about 30 September 2004, and 29 October 2004, wrongfully use marijuana. The punishment consisted of a reduction to E-1; forfeiture of $597.00 pay per month for two months and extra duty for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None Report of Mental Status Evaluation, dated 6 January 2005, reflects the applicant meets the retention standards prescribed in Chapter 3, AR 40-501 and there is no psychiatric disease or defect that warrants disposition through medical channels, was mentally responsible, able to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in board proceedings, and was cleared for any administrative actions deemed appropriate by the command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement. 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) 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 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY 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 applicant's unit commander inappropriately responded to applicant's reservations regarding applicant's participation with unit's imminent deployment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends a deep depression lead to drinking heavily and on one occasion ingesting marijuana. There is no evidence in the AMHRR the applicant ever sought assistance from his command regarding depression before committing the misconduct, which led to the separation action under review like the Army community services, the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends the Veterans Administration has granted a service connection for medical conditions the applicant suffered while on active duty and therefore should have been medically discharged. The available medical evidence in the AMHRR is void of any indication the applicant was suffering from a medical or mental condition during the discharge processing, warranting separation processing through medical channels. 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 and found the applicant was diagnosed with an Adjustment Disorder and separately the applicant asserted depression, both of which could mitigate the basis for applicant's separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant asserted depression in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, the Board's Medical Advisor opined that applicant's 2x marijuana usage and failure to report multiple times to an appointed place of duty are not mitigated by applicant's depression because depression does not impair the ability to make conscious decisions and understand these consequences that lead to applicant's discharge. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's 2x marijuana usage and failure to report multiple times to an appointed place of duty outweighed the applicant's assertion of depression. b. Response to Contention(s): (1) The applicant contends applicant's unit commander inappropriately responded to applicant's reservations regarding applicant's participation with unit's imminent deployment. The Board considered this contention during deliberations and found that commander's responses to applicant's imminent deployment does not justify applicant's 2x use of marijuana and failure to report multiple times to an appointed place of duty. (2) The applicant contends a deep depression lead to drinking heavily and on one occasion ingesting marijuana. The Board considered applicant's pre-deployment stressors, but determined that applicant's use of marijuana on two separate occasions as well as failure to report on three separate occasions were contrary to good order and discipline, and the discharge was appropriate. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The official records show two marijuana uses - May 2004 and October 2004. AR 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization, and further 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. The Board determined the applicant's character of service was not sufficiently meritorious to warrant an upgrade. (4) The applicant contends the Veterans Administration has granted a service connection for medical conditions the applicant suffered while on active duty and therefore should have been medically discharged. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. The Board determined that the applicant's VA decision regarding applicant's physically limiting conditions do not mitigate, excuse, or outweigh the applicant's discharge, nor support a conclusion that applicant should have been medically discharged. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because there were no BH conditions or experiences that after applying liberal consideration, would excuse, mitigate, or outweigh the applicant's 2x marijuana abuse and failure to report multiple times to an appointed place of duty that were applicant's basis for separation. 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. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (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 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 AR20190010450 1