1. Applicant's Name: a. Application Date: 31 July 2019 b. Date Received: 5 August 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 honorable. The applicant seeks relief contending, in effect, the misconduct which led to the applicant's separation was not illegal nor did it put anyone at risk. The applicant admits making a mistake and has learned a valuable lesson. The applicant was an exceptional Soldier other than this isolated incident. An upgrade would provide the applicant an opportunity to pursue veteran's benefits. In a records review conducted on 11 February 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (OBHI diagnoses), homelessness, prior period of honorable service, and post-service accomplishments. 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. 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 (Commission of a Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 25 February 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 December 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant violated a general order by wrongfully smoked an herbal incense substance with the intention of obtaining an altered state of mind or an unnatural feeling of euphoria, a purpose other than for which it was manufactured on divers occasions between on or about 1 September 2010 and 25 November 2010. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 December 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 6 January 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 July 2010 / 2 years, 6 months, 16 weeks b. Age at Enlistment / Education / GT Score: 19 HS Graduate /119 c. Highest Grade Achieved / MOS / Total Service: E-3 / 12B10, Combat Engineer / 2 years, 1 month, 11 days d. Prior Service / Characterizations: RA, 15 January 2009 - 27 July 2010 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (9 August 2010 - 4 February 2011) f. Awards and Decorations: ACM-CS, NDSM, GWOTSM, ASR, NATO MDL, CAB g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 18 December 2010, reflects the applicant violated a general order by wrongfully smoked an herbal incense substance with the intention of obtaining an altered state of mind or an unnatural feeling of euphoria, a purpose other than for which it was manufactured on divers occasions between on or about 1 September 2010 and 25 November 2010 and make a false official statement, with intent to deceive on or about 25 November 2010. The punishment consisted of reduction to private/E-1; forfeiture of $723 pay per month for two months; and extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Health Evaluation, dated 1 December 2010, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was diagnosed with Opioid-related disorder. The applicant received a Developmental Counseling Form for wrongfully smoked an herbal incense substance with the intention of obtaining an altered state of mind or an unnatural feeling of euphoria 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 6. POST SERVICE ACCOMPLISHMENTS: The applicant is currently residing at a sober living house for veterans. 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, states 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. 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'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 seeks relief contending, in effect, the misconduct which led to the applicant's separation was not illegal nor did it put anyone at risk. The applicant admits making a mistake and has learned a valuable lesson. The applicant was an exceptional Soldier other than this isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the applicant's quality of service, brought discredit on the Army, and was prejudicial to good order and discipline. Additionally, the applicant's service accomplishments and the quality of the applicant's service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. An upgrade would provide the applicant an opportunity to pursue veteran's benefits. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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, applicant's statement, and/or civilian provider documentation. Applicant has been diagnosed with Neurosis (Generalized Anxiety DO) by the VA. This is a potentially mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. VA has rated applicant's diagnosis of Neurosis as 50% service connected. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency BH advisor that the applicant has a mitigating BH condition, Neurosis (aka GAD). As there is an association between Neurotic DO and the use of illicit drugs to self-medicate symptoms, there is a nexus between applicant's diagnosis of Neurotic DO and his wrongful use of synthetic marijuana. (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 GAD is often associated with drug abuse for the reasons listed in (3) above. 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 the misconduct which led to the involuntary separation was not illegal nor did it put anyone at risk. The Board did not follow the applicant's reasoning, as the substance was and is considered illegal as established by the Department of the Army, thus the discharge was proper and equitable at the time. However, due to the applicant's mitigating GAD, the Board determined that relief was warranted. (2) The applicant contends being an exceptional Soldier other than the isolated incident. The Board determined the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By abusing drugs, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. However, due to the applicant's mitigating GAD, the Board determined that relief was warranted. (3) The applicant contends an upgrade would allow the opportunity to pursue veteran's benefits. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined the discharge is inequitable based on the applicant's OBHI diagnosis. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's GAD mitigated the one-time Spice use. 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 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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change a. 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 AR20190013057 2