1. Applicant's Name: a. Application Date: 5 September 2019 b. Date Received: 9 September 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, he feels that his deployment and the stressors of combat ultimately led to his unfortunate decision to use illegal substances. In a records review conducted on 25 June 2021, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (OBHI diagnosis). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 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 (Drug Abuse) / AR 635- 200, Paragraph 14-12c(2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 7 January 2009 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 13 November 2008 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; wrongful use of cocaine x3, wrongful use of marijuana, AWOL from 4 September to 8 September 2008, failure to obey a lawful order, and failure to be at appointed place of duty x4. (3) Recommended Characterization: The applicant's chain of command recommended an Under Other Than Honorable Conditions discharge. (4) Legal Consultation Date: NIF (5) Administrative Separation Board: Applicant unconditionally waived his rights to an administrative separation board authorized to characterize the nature of his discharge as other than honorable. He understood that he could be discharged under other than honorable conditions. In exchange for his actions as previously stated, the Convening Authority agrees to refer his case to a Summary Court-Martial. (6) Separation Decision Date / Characterization: 19 December 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 May 2006 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 21 years / GED Certificate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 21B10, Combat Engineer / 2 years, 8 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq, 29 October 2006 to 30 October 2007 f. Awards and Decorations: NDSM, ICM-2BSS, GWOTSM, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Positive urinalysis test coded IR (Inspection Random), dated 10 April 2008, for COC. CID Report of Investigation, dated 21 May 2008, revealed the applicant was under investigation for wrongful use of cocaine. Positive urinalysis test coded CO (Competence for Duty/Command Direct/Fitness for Duty), dated 16 July2008, for COC. Positive urinalysis test coded IR (Inspection Random), dated 16 July2008, for COC. FG Article 15 dated, 12 August 2008, for having been restricted to the limits of Fort Stewart, GA, by a person authorized to do so, did break said restriction (15 July 2008); without authority, fail to go at the time prescribed to his appointed place of duty (16 July 2008); and wrongful use of cocaine between (14 July 2008 and 16 July 2008); forfeiture of $673 pay for two months, extra duty and restriction for 45 days. Positive urinalysis test coded CO (Competence for Duty/Command Direct/Fitness for Duty), dated 16 July2008, for COC. Report of Mental Status Evaluation, dated 11 September 2008, relates the applicant met the retention standards prescribed in AR 40-501and there was no psychiatric disease or defect that warrants disposition through medical channels. He was cleared for any administrative actions deemed appropriate by command to include separation in accordance with AR 635-200. CID Report of Investigation, dated 8 October 2008, shows the applicant was under investigation for wrongful use of marijuana and cocaine. Summary Court-Martial dated, 29 October 2008; the applicant was found guilty of the following offenses; without authority, absented himself from his unit (4 September 2008 until 8 September 2008); without authority, fail to go at the time prescribed to his appointed place of duty (15 September 2008); wrongful use of cocaine between (6 September 2008 and 8 September 2008); and wrongful use of marijuana between (9 August 2008 and 8 September 2008). The applicant was sentenced to forfeiture of $300 pay for one month and confinement for 30 days. The applicant received several negative counseling statements for various acts of misconduct; and notified of pending separation action. i. Lost Time / Mode of Return: AWOL for 5 days, 4 September 2008 until 8 September 2008; and confinement for 30 days. These periods of lost time are annotated on the applicant's DD Form 214 block 29, dates of time lost during this period. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); VA decision letter (three pages); DD Form 214; and a DD Form 215. 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), 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 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. (2) 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. (3) 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. 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 14-12c(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 general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and marred the quality of his service. The applicant seeks relief contending, in effect, he feels that his deployment and the stressors of combat ultimately led to his unfortunate decision to use illegal substances. The applicant contends that prior to deployment and during his deployment, he performed quite well as a Soldier. The applicant contends since being discharged, he was diagnosed with PTSD and feel his mental health issue was a contributor to the discharge. The applicant alleges he was treated for psychiatric conditions at the Army hospital at Fort Stewart, GA prior to discharge. The applicant's service record contains a DD Form 2624 (Specimen Custody Document for Drug Testing) that shows the urinalysis test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty." The Limited Use Policy applies to this test basis, per AR 600-85. However, the evidence of record shows that the applicant returned to the unit from a period of AWOL. The urinalysis specimen was collected the very same day the applicant returned from AWOL. Commanders have a policy that require an inspection of Soldiers returning from absence (i.e., AWOL, TDY, Leave, etc.). In view of the aforementioned, it appears the CO code used on the DD Form 2624 was in all likelihood incorrect and should have been coded IO for "Inspection Other" instead of CO for "Competence for Duty." If this was in fact a harmless error, then the rights of the applicant were not prejudiced by the error on file in this case. The evidence in the record did not create a substantial doubt that the discharge would have been any different if the error had not been made. 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? (NO) The applicant claims to have been diagnosed with PTSD, but did not provide any documents, such as civilian medical documentation, to corroborate this claim. Further, the Board's Medical Advisor, found no documentation of any PTSD diagnosis in either the DOD or VA medical records. (2) Did the condition exist or experience occur during military service? (NO) Despite a careful review of the applicant's AMHRR and DOD and VA medical records, the ADRB was unable to identify any evidence of a condition or experience, to include PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? (YES) Despite an absence of documentation, the ADRB applied liberal consideration, and, because all of the applicant's misconduct occurred post deployment, the majority of the Board felt that the applicant's claim of PTSD had some merit. Therefore, the ADRB found that the applicant's condition mitigates some of the applicant's discharge. (4) Does the condition or experience outweigh the discharge? (YES) Despite the lack of documentation, the ADRB liberally considered the applicant's post-deployment behavior, and decided that it was so significantly different than his pre-deployment behavior, there was signs of PTSD. b. The applicant contends that prior to deployment and during his deployment, he performed quite well as a Soldier. The ADRB concurred that the applicant's pre-deployment conduct was significantly different than his post-deployment behavior. Accordingly, the Board decided that some mitigation was appropriate. c. The applicant contends since being discharged, he was diagnosed with PTSD and feels his mental health issue was a contributor to the discharge. Despite the fact that the applicant provided no documents to confirm the applicant's claim of PTSD, the ADRB found that the applicant more likely than not did suffer from some OBH diagnosis related to the deployment. d. The applicant alleges he was treated for psychiatric conditions at the Army hospital at Fort Stewart, GA prior to discharge. The Board found no record of such treatment in the applicant's DOD health record. Nevertheless, the Board felt that there may have been some OBH condition. e. The applicant contends he feels that his deployment and the stressors of combat ultimately led to his unfortunate decision to use illegal substances. The ADRB found that the changes in the applicant's behavior post-deployment were significant enough to serve as proof of some amount of trauma. Therefore, the board voted to upgrade the applicant's characterization of service to General (Under Honorable Conditions). f. The Board determined that the characterization of service was inequitable based on the applicant's changes in the applicant's behavior pre- to post-deployment. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General (Under Honorable Conditions). g. Rationale for Decision: (1) There were no documents to corroborate the applicant's PTSD claim from the applicant or within the applicant's AMHRR, DOD health records, or VA health records. Despite the lack of substantiating documents, the Board found that the changes in the applicant's behavior after returning from deployment were significant enough to indicate that the applicant may have developed some OBH condition while deployed. The Board determined that the characterization of service was inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (OBH diagnosis). The Board considered, but found an upgrade to honorable not supported by the evidence of record. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty or is otherwise so meritorious that any other characterization would be clearly inappropriate. The Board, applying liberal consideration and considering all evidence of record, found that the applicant's service, given multiple infractions, including breaking restriction, failure to report, multiple instances of drug use and a period of AWOL, was not sufficiently meritorious to warrant an honorable discharge. (2) The Board voted not to change the applicant's reason for discharge because, despite applying liberal consideration, there were no documents to substantiate the applicant's claim of a BH diagnoses and the reason the applicant was discharged was both proper and equitable. (3) Because the reason was not changed, the SPD/RE code will not change, as the current codes are 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: General, Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health the urinalysis specimen was collected the very same day the applicant returned from AWOL.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 OBH - Other Behavioral Health 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 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190014066 8