1. Applicant's Name: a. Application Date: 27 November b. Date Received: 27 December 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was prescribed medication for a combat related injury and continued to take the prescribed medication after the medication was terminated without a doctor's recommendation. Mental health issues led to the events resulting in the discharge. The applicant had honorable service including a deployment. b. Board Type and Decision: In a records review conducted on 14 October 2022, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (Anxiety DO NOS/Panic Disorder diagnoses). 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. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, 27, and 28, contain erroneous entries. The Board directed the following administrative corrections and reissue of the applicant's DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, b. block 26, separation code changed to JKQ, c. block 27, reentry code changed to 3, d. block 28, narrative reason for separation changed to Misconduct (Serious Offense). 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 / Chapter 14-12c (2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 15 June 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 April 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted by Summary Court-Martial for attempting to distribute a controlled substance, making a false official statement, wrongful introduction of a controlled substance, and wrong use of a controlled substance. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 25 April 2007 (5) Administrative Separation Board: The applicant waived consideration of the case by an administrative separation board. (6) Separation Decision Date / Characterization: 15 May 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 October 2003 / 4 years b. Age at Enlistment / Education / GT Score: 21 / HS graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F10, H7 Petroleum Supply Specialist / 5 years, 1 month, 3 days d. Prior Service / Characterizations: ARNG, 20 February 1999 - 1 November 2000 / UNC e. Overseas Service / Combat Service: Germany, SWA / Iraq (5 October 2005 - 28 September 2006) f. Awards and Decorations: MUC, NDSM, GWOTSM, ICM, ASR, OSR, CAB, Expert Marksmanship Qualification Badge - Rifle Bar g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Record of Trial by Summary Court- Martial reflects, at a trial proceeding held on 22 March 2007, the applicant pled guilty and was found guilty of attempting to distribute a controlled substance, making a false official statement, wrongful introduction of a controlled substance, and wrong use of a controlled substance. The punishment consisted of restriction for 60 days; forfeiture of $910 of pay for 1 month, and reduction to private/E-1. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Status Evaluation, dated 12 September 2006, reflects the applicant was psychiatrically cleared for any administrative action deemed appropriate by command. The applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was diagnosed with BZD abuse. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is a father and serves the community in the healthcare field. 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, 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 "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. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her 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 waivable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This 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's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contends mental health issues led to the events resulting in the discharge. The applicant's AMHRR contains no documentation of mental health diagnosis. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The AMHRR shows the applicant underwent a MSE on 12 September 2006, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any mental health diagnosis. The MSE was considered by the separation authority. ARBA sent a letter to the applicant at the address in the application on 23 July 2021 requesting documentation to support a mental health diagnosis but received no response from the applicant. The applicant contends there was honorable service including a deployment. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, "AR 635-200, PARA 14-12C (2)." The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, Paragraph 14-12c due to "Misconduct (Serious Offense)." Based on the applicant's AMHRR, it appears someone in the discharge process erroneously entered on the applicant's DD Form 214, block 26, Separation Code as "JKK." Enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Paragraph 14-12C, for Misconduct (Serious Offense) will be assigned a Separation Code of "JKA," per Army Regulation 635-5-1. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as "4." The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense). Soldiers processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of "3." Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 28, Narrative Reason for Separation as "Misconduct (Drug Abuse)." The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c. Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason for Separation as Misconduct (Serious Offense). 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 and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: The applicant has been diagnosed with the following potentially mitigating BH conditions: Anxiety DO due to general medical condition with Panic Attacks (13 Mar 2007); Anxiety DO NOS (29 Aug 2006); Panic Disorder without Agoraphobia (20 Feb 2007); Benzodiazepine Abuse. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnoses of Anxiety DO due to general medical condition with panic attacks, Anxiety DO NOS, Panic DO without agoraphobia all occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has two BH conditions, Anxiety DO NOS/Panic Disorder, which mitigate some of applicant's misconduct. As both conditions are associated with use of alcohol and illicit substances to self-medicate painful emotional symptoms, there is a nexus between these conditions and applicant's wrongful use of a controlled substance. Neither condition, however, mitigates the offenses of attempting to distribute a controlled substance, wrongfully introducing a controlled substance, or making a false official statement as neither condition affects one's ability to understand the difference between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's Anxiety DO NOS and Panic DO outweighed the basis for applicant's separation - attempting to distribute a controlled substance, wrongfully introducing a controlled substance, or making a false official statement - for the aforementioned reasons. b. Response to Contention(s): The applicant contends mental health issues led to the events resulting in the discharge. The Board considered this contention and determined the applicant's mental health issues do not excuse the totality of the applicant's misconduct. However, the Board voted to upgrade the applicant's discharge to General, Under Honorable Conditions with an RE-code of 3 due to applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (Anxiety DO NOS/Panic Disorder diagnoses). c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (Anxiety DO NOS/Panic Disorder diagnoses). 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. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's length and quality of service, to include combat service Anxiety DO NOS and Panic Disorder mitigated the applicant's misconduct of wrongful use of a controlled substance. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the applicant's reason for discharge because, although the Board found the narrative reason for discharge proper and equitable, it was found that there was an administrative error on the applicant's DD Form 214, thus making the current reason for discharge improper. The corrected reason for discharge will be Misconduct (Serious Offense). The SPD code associated with the new reason for discharge is JKQ. (3) The Board voted to change the applicant's RE code because it was found that there was an administrative error on the applicant's DD Form 214, thus making the current code improper. The corrected RE code will read RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD code to: Misconduct (Serious Offense) / JKQ d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12c 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 AR20200000355 1