1. Applicant's Name: a. Application Date: 12 September 2019 b. Date Received: 10 October 2019 c. Counsel: 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 through legal counsel requests an upgrade to honorable or general (under honorable conditions), a narrative reason change to Secretarial Authority or Miscellaneous, and a change to the reentry eligibility (RE) code. The applicant seeks relief contending, in effect, the discharge was inequitable because it was based on an isolated incident that resulted from struggles with PTSD related symptoms. It does not adequately or accurately reflect the period of honorable service he provided and the commendations earned during periods of service. The applicant contends that ample evidence demonstrates that he was suffering from PTSD related conditions at the time of discharge in December 2006. He was anxiously, struggling with memory loss and felt emotionally detached and depressed. He did not suffer from any of these conditions prior to deployment to Afghanistan. Accordingly, it was the PTSD related conditions and symptoms that resulted from period of foreign service. Upon return from Afghanistan in 2006 he continued to serve at Fort Bragg rather than immediately separating from the Unit State Army. As such, it is believed suffering upon returning to Fort Bragg should be seen as persuasive evidence that the condition existed during military service. It is believed that the ADRB should find that isolated instances of substance use were attempts to self-medicate while he suffered from PTSD related conditions and suffering outweighs the discharge. post-service conduct and service record prior to wrongful drug and alcohol use support a showing the misconduct during service was an aberration. It is believed he deserves a discharge upgrade so that he may be recognized not for moments of poor judgment spurred by mental health issues resulting from active duty service in a warzone, but rather for the exemplary service he provided in Afghanistan. He is a man of high moral character and integrity, who has overcome the trauma he experienced to become an outstanding citizen who dedicates time to helping others with substance abuse issues. It is clear that he deserves a discharge The applicant contends he was awarded several awards to include two ARCOM's, two AAM's, the AGCM, ACM, GWOTSM, OSR, CAB, Parachutist Badge, Driver and Mechanic with Driver-Wheeled Vehicle(s) Badge. It is believed that the application fits directly within the parameters of the PTSD Upgrade Memo, and thus the board should use "Liberal Consideration" in its review. For the foregoing reasons, the applicant and counsel respectfully requests that the board grant the applicant a discharge upgrade to honorable, or general (under honorable conditions), that reenlistment code, narrative reason of separation, separation authority, and separation code be changed accordingly. In a records review conducted on 12 January 2022, and by a 3 - 2 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (depressions diagnoses) and post service accomplishments, as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed 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 t 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 / Under Other Than Honorable Conditions b. Date of Discharge: 11 December 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 October 2006 (2) Basis for Separation: The applicant was informed of the following reason: for positive urinalysis on 10 October 2006, for use of cocaine, and being drunk on duty. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 23 October 2006, the applicant waived rights to legal counsel and to an administrative separation board. (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: On 30 November 2006, the separation authority having reviewed the request for the unconditional waiver of an administrative separation board submitted by the applicant directed that the applicant be discharged from the US Army with a service characterization of under other than honorable conditions. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 January 2003 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Food Service Operation Specialist / 3 years, 10 months, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (15 April 2005 to 14 May 2006) f. Awards and Decorations: ARCOM-2, AAM-2, AGCM, ACM, GWOTSM, OSR, CAB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 5 January 2005, for being found drunk on duty as a cook on or about 4 December 2004. The punishment consisted of reduction to E-1, forfeiture of $571.00 pay per month for two months (suspended) and restriction and extra duty for 45 days. General Officer Memorandum of Reprimand, for being arrested for suspicion of driving while impaired and refusing to submit or failed to complete a mandatory blood alcohol content test at the time of arrest. Electronic copy of the DD Form 2624, dated 17 October 2006, reflects the applicant tested positive for COC 361 during an Inspection Random (IR) urinalysis testing conducted on 10 October 2006. Summary Court-Martial, dated 25 October 2006, for the wrongful use of cocaine. The punishment consisted of reduction to E-1, forfeiture of $854.00 pay per month for one month and confinement for 28 days. Memorandum for Commander, dated 30 November 2006, reference Administrative Separation Pursuant to AR 635-200, Chapter 14-12c, Commission of a Serious Offense. DA Form's 4187-E, changing the applicant's duty status from: Present for Duty (PDY) to Confined by Military Authorities (CMA), effective 26 October 2006 and CMA to PDY, effective 17 November 2006. Several negative counseling statements for various action of misconduct. Report of Mental Status Evaluation, dated 24 October 2006, which indicates the applicant was mentally responsible for behavior, could distinguish right from wrong, and possessed sufficient mental capacity. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels. i. Lost Time / Mode of Return: Confinement by Military Authorities for 22 days (26 October 2006 to 16 November 2006); as a result of summary court-martial. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief to include exhibits 1-23. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contents that since discharge, the applicant has worked hard to be a contributing member of society. He has been sober for nearly seven years and regularly attends Alcoholics Anonymous meetings. On a weekly basis he volunteers at a maximum security prison, where he helps facilitate Alcoholics Anonymous meetings. In outreach work he strives to pass on a message of recovery from drugs and alcohol to inmates in the program. When given the opportunity he also goes to the VA Hospital to help lead Alcoholics Anonymous meeting for patients suffering from drug and alcohol addiction. He has held the same job as a union ironworker since he was separated from the Army. As a foreman in commercial construction he is responsible for supervising teams and maintaining a positive work environment for forty or more hours per week. The draws on military experience in order to be an effective leader. The applicant is also a loving husband and father to two young children who enjoys training for and competing in triathlons in spare time. 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 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of t regulation applies, and early separation is clearly in the Army's best interest. Separations under t paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (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 t 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. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing or term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. T includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years' active Federal service. Eligibility: Ineligible for enlistment. 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 through legal counsel requests an upgrade to honorable or general (under honorable conditions), a narrative reason change to Secretarial Authority or Miscellaneous, and a change to the reentry eligibility (RE) code. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of records indicate separation action was initiated against the applicant for positive urinalysis on 10 October 2006, for use of cocaine, and being drunk on duty. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635- 200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under t paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-8, Separation Documents, governs preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2- 3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under t regulation. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c(2), is "JKK." The applicant through legal counsel seeks relief contending that the discharge was inequitable because it was based on an isolated incident that resulted from struggles with PTSD related symptoms. It does not adequately or accurately reflect the period of honorable service he provided and the commendations he earned during period of service. The applicant's contentions were noted. The evidence in the AMHRR indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant through legal counsel claims he was struggling with PTSD related symptoms at the time of discharge; that ample evidence demonstrates he was suffering from PTSD related conditions at the time of discharge in December 2006. He was anxiously, struggling with memory loss and felt emotionally detached and depressed. He did not suffer from any of these conditions prior to deployment to Afghanistan. Accordingly, it was the PTSD related conditions and symptoms that resulted from periods of foreign service. The Report of Mental Status Evaluation, dated 24 October 2006, indicates the applicant was mentally responsible for the behavior, could distinguish right from wrong, and possessed sufficient mental capacity. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels. The applicant through legal counsel contends he was awarded several awards to include two ARCOM's, two AAM's, the AGCM, ACM, GWOTSM, OSR, CAB, Parachutist Badge, Driver and Mechanic with Driver-Wheeled Vehicle(s) Badge. The applicant's in-service accomplishments were noted and the applicant is to be commended on service. The applicant through legal counsel contends the post-service conduct and service record prior to wrongful drug and alcohol use support a showing the misconduct during service was an aberration. It is believed he deserves a discharge upgrade so that he may be recognized not for moments of poor judgment spurred by mental health issues resulting from active duty service in a warzone, but rather for the exemplary service he provided in Afghanistan. He is a man of high moral character and integrity, who has overcome the trauma he experienced to become an outstanding citizen who dedicates time to helping others with substance abuse issues. It is clear that he deserves a discharge. It is believed the application fits directly within the parameters of the PTSD Upgrade Memo, and thus the board should use "Liberal Consideration" in its review. For the foregoing reasons, the applicant and counsel respectfully requests that the board grant the applicant a discharge upgrade to honorable, or general (under honorable conditions), that reenlistment code, narrative reason of separation, separation authority, and separation code be changed accordingly. The applicant's post-service accomplishments have also been noted as outlined on the application and in the documents with the application and the applicant is to be commended on accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. Also, the applicant through legal counsel contends that other Soldiers with similar offenses were upgraded by the board. It should be noted, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 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 and determined the applicant, while on active duty, was diagnosed with Depression, a potentially mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. The Board arrived at t finding based upon military medical records indicating the applicant was diagnosed with Depression by the military. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board arrived at this finding based upon the given association between combat stress, redeployment adjustment difficulties, post-traumatic depression and the wrongful use of illegal drugs to self-medicate symptoms, the BH advisor feels that it is more likely than not that the applicant's wrongful use of cocaine was due to a post-traumatic depressive condition diagnosed by the military as Depression. As such, the misconduct is mitigated under Liberal Consideration. However, the applicant's 2013 DWI and 2004 alcohol-related incident (drunk on duty) are not mitigated by Liberal Consideration as these incidents occurred prior to combat deployment. (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 BH diagnoses of Depression are often associated with combat stress, redeployment adjustment difficulties, post-traumatic depression and the wrongful use of illegal drugs to self-medicate symptoms. As a result, the ADRB applied liberal consideration and found the cause for separation is partially mitigated by the BH condition for the reasons listed in (3) above. The applicant's offenses of 2013 DWI and 2004 alcohol-related incident (drunk on duty) are not medically mitigated, as there is no nexus between these behaviors and the BH conditions listed. b. Response to Contention(s): (1) The applicant seeks relief contending the discharge was inequitable because it was based on an isolated incident that resulted from struggles with PTSD related symptoms. It does not adequately or accurately reflect the period of honorable service provided and the commendations earned during service. The Board determined the discharge was too harsh and voted to grant relief in the form of an upgrade of the characterization of service to honorable. (2) The applicant contends that other Soldiers with similar offenses were upgraded by the board. It should be noted, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. The Board considered the contention during board proceedings and voted to grant relief in the form of an upgrade based upon the facts and evidence in the specific case. c. The Board determined the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (depression diagnoses) and post service accomplishments as a result it is inequitable. Accordingly, 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. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had a BH condition of Depression which mitigated the applicant's misconduct of combat stress, redeployment adjustment difficulties, post-traumatic depression and the wrongful use of illegal drugs to self-medicate symptoms. However, the applicant's offenses of driving while intoxicated and drunk on duty are not medically mitigated. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions), 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 e. 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 AR20190014923 7