1. Applicant's Name: a. Application Date: 24 June 2019 b. Date Received: 28 June 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions) The applicant, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, on 16 October 2010, while stationed at Fort Bragg, he was getting ready for PT when his barracks was subject to a random health and safety check. Upon search of his room, a flavored smoking product was found amongst his possessions. It was revealed to him this flavored smoking product was illegal to have in the military and was told if he admitted to using it and having it in his possession, he would not be in trouble. He was not aware his flavored smoking product, which was commercially sold over the counter, was a substance he was not allowed to purchase and were readily available for over the counter sale in local gas stations. On 25 October 2010, he was notified of a command referral for a mental health evaluation, which the commander failed to provide an explanation as to why she felt the evaluation was necessary, nor did she provide the mental health professional that was consulted as required by the Department Instruction 6490.4. On 26 October 2010, the applicant received a developmental counseling. In his administrative separation notification, it was revealed he was being separated for a pattern of misconduct, which cited the flavored smoking product incident as well as an offense of shoplifting under $100 on 16 December 2009. Since his departure from the Army, he has worked at a computer company. Although it has not been easy to go back to school without the help of the GI Bill, he has worked hard to put himself through school to earn a degree in computer science. He currently works providing technical support at Camp Roberts Military Reservation. In a records review conducted on 1 September 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: 13 June 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 April 2011 (2) Basis for Separation: The applicant was informed of the following reasons: For wrongfully violating 82d Airborne Regulation 190-2 on 26 October 2010, by possessing and using "serenity now", an herbal incense and larceny of less than $100 from AAFES on 16 December 2009. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 17 May 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 January 2009 / 4 years / based on the enlistment contract, DD Form 214, block 12a, Date entered AD this period, erroneously reflects 15 January 2009. b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-2 / 25N10, Nodal Network Systems / 2 years, 4 months, 30 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: Military Police Report, dated 16 December 2009, reflects the applicant was apprehended for: Larceny of AAFES Property - Less than $100 (On Post). Military Police Report, dated 26 October 2010, reflects the applicant was apprehended for: failing to obey general order (On Post) and contraband (On Post). Army Substance Abuse Program (ASAP) Enrollment form, dated 26 October 2010, reflects the applicant was-referred in the ASAP by his supervisor. FG Article 15, dated 27 January 2011, for failing to obey a lawful order by wrongfully possessing "Serenity Now" an herbal incense on or about 26 October 2010 and for failing to obey a lawful order by wrongfully using "Serenity Now" an herbal incense on or about 26 October 2010. a charge The punishment consisted of a reduction to E-1; forfeiture of $733; and, extra duty and restriction for 45 days. Report of Behavioral Health Evaluation, dated 7 February 2011, reflects the applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief; DD Form 214; Enlisted Record Brief; Separation Packet. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has worked hard to put himself through school to earn a degree in computer science. He works at a computer company and provides technical support at Camp Roberts Military Reservation. 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. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of "3." 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. Counsel contends the applicant was discharged for an offense that was not even considered illegal at the time of his punishment and his general discharge from the Army was completely unwarranted and unfair. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. Counsel contends, the discharge should be upgraded because the applicant was notified of a command referral for mental health evaluation, which the commander failed to provide an explanation as to why the evaluation was necessary. The issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued Counsel contends, the applicant has worked hard to put himself through school to earn a degree in computer science. He currently works providing technical support at Camp Roberts Military Reservation. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statement provided with the application speaks highly of the applicant. It recognizes the applicant's good conduct after leaving the Army. 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 was diagnosed with OBHI by the military, which, in the opinion of the Board's Medical Advisor, a voting member, could potentially mitigate the misconduct which led to separation from the Army. The applicant held in-service diagnoses of Adjustment Disorder, Depression, and Cocaine Abuse. Post-service, he is service connected for Conversion Disorder; details unknown. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder, Depression, and Cocaine Abuse. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, conscious decisions to violate rules and regulations are not indicative of Adjustment Disorder or Depression. Although there is no information on the applicant's service connected condition, a Conversion Disorder relates to developing physical ailments in response to emotional distress; this excludes using substances or larceny. Therefore, the ADRB determined that the applicant's BH conditions do not excuse or mitigate the applicant's misconduct of possession and use of illicit substances or theft. (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 non-medically mitigated offenses of possessing herbal incense and larceny outweighed the applicant's Adjustment Disorder, Depression, Cocaine Abuse, and Conversion Disorder, because Conversion Disorder relates to developing physical ailments in response to emotional distress; this excludes using substances or larceny. b. Response to Contentions: (1) Counsel contends the applicant was discharged for an offense that was not even considered illegal at the time of his punishment and his general discharge from the Army was completely unwarranted and unfair. The discharge was for disobedience of a lawful order and larceny. The Board found that the preponderance of the evidence available indicated the applicant was properly and equitably discharged, given no medical mitigation for the misconduct. (2) Counsel contends, the discharge should be upgraded because the applicant was notified of a command referral for mental health evaluation, which the commander failed to provide an explanation as to why the evaluation was necessary. The applicant held in-service behavioral health diagnoses, therefore command was required to refer the applicant for a mental health examination as part of discharge process. (3) Counsel contends, the applicant has worked hard to put himself through school to earn a degree in computer science. He currently works providing technical support at Camp Roberts Military Reservation. The Army Discharge Review Board is authorized to consider post- service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. 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, despite applying liberal consideration, the applicant's non-medically mitigated offenses of possessing herbal incense and larceny outweighed the applicant's Adjustment Disorder, Depression, Cocaine Abuse, and Conversion Disorder, because Conversion Disorder relates to developing physical ailments in response to emotional distress; this excludes using substances or larceny. The applicant did not supply sufficient independent corroborating evidence to support contentions, and 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 AR20190012328 3