1. Applicant's Name: a. Application Date: 18 November 2019 b. Date Received: 22 November 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, with the legalization and decriminalization of marijuana, the discharge should be reviewed and changed. The applicant received a general (under honorable conditions because the applicant used marijuana while recovering from a broken leg, which the applicant used because it alleviated the pain that the pills failed to do. b. Board Type and Decision: In a records review conducted on 9 September 2022, and by a 5-0 vote, The Board applied liberal consideration and determined that according to the available evidence the applicant's use of marijuana, assault of another Soldier, possession of drug paraphernalia, and failure to report which is the basis of separation, is mitigated by the applicant's BH condition (Schizophrenia). The Board determined there is an association between Schizophrenia, avoidant behavior, use of illicit drugs to self medicate painful emotional symptoms, paranoia and poor impulse control. The Board voted to grant relief therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635- 200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. The Board determined the RE code is proper and equitable and voted not to change it. 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 / General (Under Honorable Conditions) b. Date of Discharge: 26 June 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 May 2015 (2) Basis for Separation: The applicant was informed of the following reasons: for wrongfully possessing and using spice and marijuana; failing to go to the appointed place of duty; assaulting another Soldier by unlawfully striking him in the face with an open palm; and wrongfully possessing drug paraphernalia. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 7 May 2015 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: On 4 June 2015, the separation authority upon reviewing the administrative separation packet, the Medical Evaluation Board proceedings, and the chain of command recommendations pertaining to the applicant; approved the discharge with a characterization of service of General (Under Honorable Conditions). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 January 2014 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 117 c. Highest Grade Achieved / MOS / Total Service: E-1 / 11B10, Infantryman / 1 year, 5 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 1 December 2014, for failing to go at the time prescribed to the appointed place of duty 7 October 2014, unlawfully striking SPC D.L. on the face with an open hand on 21 September 2014; and possession with the intent to use drug paraphernalia in violation of Texas Controlled Substance Act Section 481.125. The punish consisted of forfeiture of $765.00 pay per month for two months and extra duty and restriction for 45 days. CID Report of Investigation (0344-2014-CID044-83710) indicates on 29 November 2014, the applicant was the subject of investigation for the wrongful use of Spice CID Report of Investigation (0020-2015-ICD044-73694) indicates on 20 January 2015, the applicant was the subject of investigation for wrongful possession of marijuana and wrongful use of marijuana. Electronic copy of the DD Form 2624, dated 12 March 2015, indicates the applicant tested positive for THC 164 during an Inspection Unit (IU) urinalysis testing conducted on 20 February 2015. Medical Evaluation Board Proceedings dated 20 February 2015. Several negative counseling statement for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 14 April 2015, which indicates the applicant has been diagnosed with an Axis I for Schizophrenia, Anxiety Disorder Not Otherwise Specified, Cannabis Dependence (PER AHLTA). It was noted in the remarks that based on the clinical interview of the applicant and review of the electronic medical records, the applicant did meet medical retention standard at that time, however, the applicant was mentally responsible for the behavior, could distinguish between right and wrong, and possessed sufficient mental capacity to participate intelligently in any administrative action deemed appropriated by the Command. Saint Luke's Health System medical documents / discharge summary dated 28 February 2014, which indicates he had been diagnosed with an Axis I for Bipolar I most recently manic type, severe, with psychotic features. Post-Traumatic Stress Disorder, Alcohol Abuse; also, an Axis II for Personality Disorder, not otherwise specified with antisocial. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 214 for the period of service under review. 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 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. (8) Chapter 15 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 this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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) 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-4 Applies to: Person separated from last period of service with a nonwaiverable 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 requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR indicates separation action was initiated against the applicant for wrongfully possessing and using spice and marijuana; failing to go to the appointed place of duty; assaulting another Soldier by unlawfully striking him in the face with open palm; and wrongfully possessing drug paraphernalia. The applicant seeks relief contending with the legalization and decriminalization of marijuana, the applicant discharge should be reviewed and changed. The applicant received a general (under honorable conditions because the applicant used marijuana while recovering from a broken leg, which the applicant used because it alleviated the pain that the pills failed to do. The applicant's contentions were noted; however, the applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a Soldier. 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. Also, the applicant had many legitimate avenues through which to obtain assistance or relief, and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 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: Schizophrenia. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant developed Schizophrenia while on active duty. The VA has also established 100% service connection for this condition. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a BH condition, Schizophrenia, which mitigates the misconduct. As there is a nexus between Schizophrenia and use of illicit drugs to self medicate painful emotional symptoms (auditory hallucinations in the applicant's case), there is a nexus between psychotic disorder and repeated wrongful use of marijuana/Spice and possession of drug paraphernalia. As there is an association between Schizophrenia, paranoia and poor impulse control, there is a nexus between the diagnosis of Schizophrenia and the offense of striking another person in the face with open palm. As there is an association between Schizophrenia and avoidant behavior, there is a nexus between the diagnosis, missing of appointments, and failure to report. (4) Does the condition or experience outweigh the discharge? Yes. The Board applied liberal consideration and considered the opinion of the Board's Medical Advisor, a voting member, and determined that according to the available evidence the applicant's repeated wrongful use of marijuana/Spice, possession of drug paraphernalia, and avoidant behavior is outweighed by the applicant's Schizophrenia. b. Response to Contention(s): (1) The applicant seeks relief contending that with the legalization and decriminalization of marijuana, the discharge should be reviewed and changed. The applicant received a general (under honorable conditions because the applicant used marijuana while recovering from a broken leg, which the applicant used because it alleviated the pain that the pills failed to do. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Schizophrenia fully outweighing the applicant's AWOL and drug abuse basis for separation. The Board determined the applicant, had the duty to support and abide by the Army's drug policies; however, the applicant's Schizophrenia mitigates the repeated wrongful use of marijuana/Spice, and possession of drug paraphernalia. (2) Contends the event which led to the discharge from the Army was an isolated incident. While the Board noted the applicant's multiple instances of misconduct, the Board determined that the applicant's Schizophrenia outweighed the misconduct thus warranting relief in the form of an upgrade to Honorable. c. The Board determined that according to the available evidence the applicant's use of marijuana, which is the basis of separation, is mitigated by the applicant's Schizophrenia. As there is a nexus between Schizophrenia, avoidant behavior, use of illicit drugs to self medicate painful emotional symptoms, paranoia and poor impulse control. The Board determined relief was warranted after reviewing the records in addition to the applicant's Schizophrenia diagnosis. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because after applying liberal consideration of all the evidence before the Board, the Board determined the applicant's Schizophrenia outweighed the applicant's marijuana abuse, possession of illegal drugs, assault, and failure to report. Thus, the prior characterization is no longer appropriate. The Board further found that when the applicant was determined unfit for duty, the case was not referred correctly by command for a medical discharge and was administratively separated instead. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The Board determined the RE code is proper and equitable and voted not to change it. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: No Change e. Change Authority to: AR 635-200, Chapter 15 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 AR20200001822 1