1. Applicant's Name: a. Application Date: 10 May 2019 b. Date Received: 20 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. The applicant seeks relief contending, in effect, that he would like an upgrade of his discharge because it would allow him to provide more for his family. The applicant contends upon his returning from his second tour to Iraq, he had a domestic issue with his wife and received charges from the State of Colorado. Because of this he was not able to carry a firearm for the next few years. Even though he had just reenlisted with the Army to become an OR Technician, he was not able to continue being a Soldier because he could not carry a firearm. Therefore, this put into play the beginning of the end for his at the time Army career. In a telephonic hearing on 17 May 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, the circumstances surrounding the discharge (PTSD diagnosis), prior period of honorable service, and post-service accomplishments. Therefore, the Board voted to grant relief in the form of change to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. The Board determined that the characterization of service was proper and equitable and voted not to change. Please see Section 10 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: 11 January 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 December 2006 (2) Basis for Separation: The applicant was informed of the following reasons: for going AWOL from 3 May 2006 until 1 August 2006, violating a restraining order 1 May 2006, and wrongfully possessing marijuana 7 November 2006 (3) Recommended Characterization: Under Other Than Honorable Conditions It should be noted the intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 18 December 2006, the senior intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general (under honorable conditions) discharge. (4) Legal Consultation Date: 6 December 2006 (5) Administrative Separation Board: The applicant voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general (under honorable conditions). (6) Separation Decision Date / Characterization: 21 December 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 March 2006 / 4 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 63M10, Bradley Fighting Vehicle System Mechanic / 4 years, 2 months, 7 days d. Prior Service / Characterizations: RA, 21 June 2002 to 8 March 2006 / HD e. Overseas Service / Combat Service: SWA / Iraq (11 April 2003 to 27 March 2004 and 28 February 2005 to 23 February 2006) f. Awards and Decorations: ARCOM, AGCM, NDSM, GWOTEM, GWOTSM, ICM, ASR, OSR, CAB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Several DA Form's 4187 (Personnel Actions) changing the applicant duty status as follows: Present for Duty to Absent Without Leave effective 3 May 2006; Absent Without Leave to Dropped from Rolls effective 3 June 2006; Dropped from Rolls to Confinement by Civilian Authority effective 1 August 2006; Confinement by Civilian Authority to Confined by Military Authority effective 15 September 2006; and Confinement by Military Authority to Present for duty effective18 September 2006 FG Article 15, dated 1 November 2006, for being AWOL 3 May 2006 to 1 August 2006. The punishment consisted of reduction to E-1, forfeiture of $636.00 pay per month for two months, and extra duty and restriction for 45 days. Military Police Report, dated 9 November 2006, which indicates the applicant was the subject of investigation for wrongful possession of marijuana. Report of Mental Status Evaluation, dated 17 October 2006, which indicates the applicant had the mental capacity to understand and participated in the proceedings and he was mentally responsible. The applicant met the retention requirements of Chapter 3, AR 40-501. The applicant was psychologically cleared for any administrative action deemed appropriated by his command. i. Lost Time / Mode of Return: 137 days: Absent Without Leave (AWOL) (4 May 2006 to 17 September 2006) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: The applicant submitted a Rating Decision letter, dated 20 November 2018, that indicates he was awarded 50 percent service connected disability for post-traumatic stress disorder with major depressive disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; several letters of support; several certificates of course completions; and a letter from the Department of Veterans Affairs dated 9 May 2019, which makes reference to the applicant having been awarded 90 percent service connected disability. The applicant also submitted a Rating Decision letter, dated 20 November 2018, that indicates the applicant was awarded 50 percent service connected disability for post-traumatic stress disorder with major depressive disorder. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided documents showing the completion of the Emergency Medical Technician requirements, and Fire Fighter I and Fire Fighter II Courses. 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) Paragraph 3-8a states A Soldier is entitled to an honorable characterization of service if limited-use evidence (see AR 600-85, chap 6) is initially introduced by the Government in the discharge proceedings, and the discharge is based upon those proceedings. The separation authority will consult with the servicing Judge Advocate in cases involving limited use evidence. (6) 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. (7) 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. (8) 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 record of service, the issues and documents submitted with the application were carefully reviewed. The record confirms the applicant's discharge is based on drug abuse with additional misconduct that includes AWOL, civil charges and violations of orders. The misconduct is not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The applicant contends he would like an upgrade of his discharge because it would allow him to provide more for his family. The applicant contends upon his returning from his second tour to Iraq, he had a domestic issue with his wife and received charges from the State of Colorado. Because of this he was not able to carry a firearm for the next few years. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): The applicant submitted the following additional document(s): On 17 May 2021, after the hearing, applicant provided a 28-page document detailing court records that was added to the case file and considered by the Board. b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): N/A 10. 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 of the board, reviewed the applicant's DOD and VA health records. DOD records do not contain a behavioral health diagnosis and the experience of IPV listed the applicant as the offender. Post-service, the VA has service connected the applicant for combat related PTSD. (2) Did the condition exist or experience occur during military service? Yes. The VA has connected the applicant's PTSD to combat service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. While the applicant asserts he went AWOL due to being arrested and desire to attend his son's birthday, the ADRB applied liberal consideration and mitigated the applicant's AWOL, because PTSD is often associated with avoidance of situations that remind a person with this diagnosis of the trauma. The Board also found that the applicant's drug use is also mitigated because individuals with untreated PTSD often self-medicate with illicit drugs. However, PTSD does not prevent an individual from understanding the difference between right and wrong and the evidence of record supports such a finding. An October 2006 report of mental status evaluation reflects the applicant was found to be mentally responsible with no evidence of altered thought process. Therefore, the ADRB decided that neither the applicant's violation of a restraining order nor his civil conviction for domestic violence are not excused or mitigated. (4) Does the condition or experience outweigh the discharge? Partially. The ADRB decided that the applicant's AWOL and drug use are mitigated by the PTSD diagnosis, because PTSD is associated with avoidance and drug use to self-medicate. However, the Board decided that the civil IPV charges and violating a restraining order are not related to the PTSD, because the applicant still could understand the difference between right and wrong despite the diagnosis. The Board found the verbal and physical domestic violence committed by the applicant was not outweighed by the diagnosed PTSD. b. The applicant's contentions were noted; however, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant provided no independent corroborating evidence. However, the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (PTSD diagnoses), prior period of honorable service, and post- service accomplishments contributed to the board's decision to change the discharge reason. c. The ADRB determined that the applicant's characterization of service was equitable due to unmitigated misconduct including intimate partner violence and violating a restraining order. However, the reason and RE Code were found to be inequitable, because the applicant's drug use is mitigated by the PTSD diagnosis. d. Rationale for Decision: (1) The board voted not to change the applicant's characterization of service finding it proper and equitable for unmitigated misconduct including violating a restraining order and civil conviction for domestic violence. (2) The board voted to change the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN to reflect the overall quality of service and PTSD mitigation of the drug use. (3) Because the reason was changed, the RE code will change to 3. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / RE-3 Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190011279 5