1. Applicant's Name: a. Application Date: 7 August 2019 b. Date Received: 12 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 to honorable and a change to his narrative reason for discharge. The applicant seeks relief contending, in effect, that his discharge was because of poor judgment on his part. The applicant contends there are many Soldiers who were his age that were able to steer clear and not make the same mistakes he did. He has been living with that guilt and regret for over 10 years. Before his discharge he attended drug and alcohol treatment and passed successfully. Prior to the events he did serve for a short period, honorably including earning an AAM for outstanding soldiering. Since his discharge he has stayed clean and sober. He has become a respected member of his neighborhood and community. In the professional world, he has achieved great feats while being under strict drug and alcohol screening requirements for 10 plus years and has not once failed. Currently he has responsible for overseeing a $650-million- dollar asset. He understands that there is a zero tolerance policy and his choices are embarrassing and a source of depression. While those are self-produced he feels that he has shown that he is nowhere near a typical addict and that his poor choices were truly isolated mistakes. In a telephonic personal appearance hearing conducted on 12 July 2021, and by a 4-1 vote, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, the Board determined that clemency is warranted based on length and quality of service in conjunction with time elapsed since discharge, and the circumstances surrounding discharge (in-service OBHI diagnosis, mTBI). 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: 1 May 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 April 2006 (2) Basis for Separation: The applicant was informed of the following reason: for having tested positive for cocaine on 21 February 2006 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 11 April 2006 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: 20 April 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 January 2005 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-3 / 14R10, Bradley LNBKR Crewmember / 2 years, 1 month, 14 days d. Prior Service / Characterizations: RA, 18 March 2004 to 10 January 2005 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 2 March 2006, reflects the applicant tested positive for COC 274 during an Inspection Other (IO) urinalysis testing conducted on 21 February 2006. FG Article 15, dated 9 March 2006, for wrongfully using cocaine between 14 February 2006 and 21 February 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. Counseling statement for the wrongful use of a controlled substance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 14 March 2006, which indicates the applicant had the mental capacity to understand and participate in the proceedings and was mental responsible. The applicant was diagnosed with and Axis I for substance-related disorder, NOS, adjustment disorder with anxiety and depressed mood. The applicant was evaluated; there was no evidence of any mental disease or defect, which would have warrant a disposition through medical/psychiatric channels. The applicant reported no suicidal or homicidal thoughts at the time. The applicant was cleared for any administrative action deemed appropriate by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: Since discharge, the applicant has stayed clean and sober. Applicant has become a respected member of the neighborhood and community. In the professional world, the applicant has achieved great feats while being under strict drug and alcohol screening requirements for 10 plus years and has not once failed. Currently the applicant is responsible for overseeing a $650-million-dollar asset. 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) 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. (6) 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. (7) 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, paragraph 12c(2), misconduct (drug abuse). 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 and a change to his narrative reason for discharge. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The record confirms that the applicant's discharge was appropriate because the quality of his 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. The applicant seeks relief contending that his discharge was because of poor judgment on his part. The applicant contends there are many Soldiers who were his age that were able to steer clear and not make the same mistakes he did. He has been living with that guilt and regret for over 10 years. Before his discharge he attended drug and alcohol treatment and passed successfully. Prior to the events he did serve for a short period, honorably including earning an AAM for outstanding soldiering. Since his discharge he has stayed clean and sober. He has become a respected member of his neighborhood and community. In the professional world, he has achieved great feats while being under strict drug and alcohol screening requirements for 10 plus years and has not once failed. Currently he has responsible for overseeing a $650- million-dollar asset. He understands that there is a zero tolerance policy and his choices are embarrassing and a source of depression. While those are self-produced he feels that he has shown that he is nowhere near a typical addict and that his poor choices were truly isolated mistakes. 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): N/A 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) Applicant was diagnosed with Adjustment disorder and mTBI (normal exam post-injury) by the military, which, in the opinion of the Board's BH Doctor, a voting member, could potentially mitigate the misconduct which led to separation from the Army. (2) Did the condition exist or experience occur during military service? (YES) Both conditions occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? (NO) Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's BH Doctor, a voting member, that the Adjustment Disorder and mTBI from two years prior (and considered resolved by the TBI clinic) do not mitigate the drug use. (4) Does the condition or experience outweigh the discharge? (NO) The applicant reported a conscious 10-month period prior and reported events coherently, thus there is no indication a psychiatric condition or head injury impaired his decision-making or ability to distinguish right from wrong. b. The applicant seeks relief contending that his discharge was because of poor judgment on his part and a one-time occurrence. The Board's findings discovered the cocaine use was the applicant's second offense. In spite of repeat drug uses while in-service and no mitigating BH conditions, the Board compassionately voted to grant clemency. c. The ADRB determined that clemency is warranted based on length and quality of service in conjunction with time elapsed since discharge, and the circumstances surrounding discharge (in-service OBHI diagnosis, mTBI). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service because, even though there were no mitigating factors to consider, the Board voted for clemency in the case and upgrade to Honorable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions). (3) The new SPD/RE-codes associated with a minor misconduct discharge are JKN/RE-3. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable 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: 7/26/2021 Presiding Officer, COL, U.S. ARMY Army Discharge Review Board Signed by: LEONARD.THEODORE.JOSEPH.1100996126 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 NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry 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