1. Applicant's Name: a. Application Date: 29 December 2019 b. Date Received: 6 January 2020 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, the service was honorable and faithful. The applicant contends post-traumatic stress disorder (PTSD) and a traumatic brain injury (TBI) contributed to the misconduct. The applicant used marijuana to help with anger and sleep problems. b. Board Type and Decision: In a records review conducted on 11 January 2023, and by a 5-0 vote, the Board determined the discharge is improper based on the applicant's PTSD and TBI mitigating the applicant's drug use and limited use policy violation by command. Therefore, 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, and the reentry code to RE-3. 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: Alcohol Rehabilitation Failure / AR 635-200 / Chapter 9 / JPD / RE-4 / General, Under Honorable Conditions b. Date of Discharge: 18 June 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 May 2013 (2) Basis for Separation: The applicant was informed of the following reasons: On 29 January 2013, the applicant was enrolled in the Army Substance Abuse Program (ASAP). The applicant was terminated from the program for failing to successfully rehabilitate due to the applicant's continued use of marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 30 May 2013 (5) Administrative Separation Board: On 30 May 2013, the applicant waived the right to a personal appearance before an administrative separation board. (6) Separation Decision Date / Characterization: 5 June 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 August 2008 / 6 years b. Age at Enlistment / Education / GT Score: 20 / Test-Based Equivalent Certificate / 103 c. Highest Grade Achieved / MOS / Total Service: E-5 / 12B10, Combat Engineer / 7 years, 4 months, 13 days d. Prior Service / Characterizations: RA, 6 February 2006 - 12 August 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (3 January 2009 - 19 December 2009), (20 January 2011 - 27 October 2011) f. Awards and Decorations: ARCOM-2, AAM-2, MUC, ACGM-2, NDSM, GWOTSM, ICM-CS-2, NCOPDR, ASR, OSR-2, CAB g. Performance Ratings: 1 June 2011 - 30 April 2012 / Fully Capable 1 May 2012 - 11 February 2013 / Marginal h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 11 February 2013, reflects the applicant wrongfully used marijuana between on or about 17 December 2012 and on or about 7 January 2013. The punishment consisted of reduction to specialist/E-4; forfeiture of $1,201 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 12 May 2013; and extra duty and restriction for 45 days. On 20 March 2013, the suspension of punishment of forfeiture of $1,202 pay, suspended, to be automatically remitted if not vacated before 12 May 2013, imposed on 11 February 2013, was vacated due to the applicant wrongfully using marijuana between on or about 7 February 2013 and on or about 28 February 2013. Memorandum, subject: Summary of Rehabilitation Efforts for [Applicant], dated 10 May 2013, reflects the applicant was referred to ASAP on 29 January 2013. The referral occurred after a positive urinalysis for THC. An evaluation was completed, and outpatient treatment was recommended. The Rehabilitation Team met on 26 February 2016, and the decision was made by command to enroll the applicant in the recommended treatment program. The applicant attended two treatment sessions and stated there was no desire for treatment and the applicant planned to continue to smoke marijuana. The applicant had 4 positive UAs and two of them occurred since the enrollment in the ASAP program. The applicant reports the intention to continue using and requested to be discharged from the program, Command determined the applicant's progress in treatment was unsatisfactory and further rehabilitation efforts in the military environment could not be justified. The commander determined the treatment was a failure. The applicant's separation packet contains an electronic DD Forms 2624 (Specimen Custody Document for Drug Testing), which shows one of the urinalysis tests was coded "RO," which indicates "Rehabilitation Testing." The government introduced these documents into the discharge process, revealing the applicant enrollment in the Army Substance Abuse Program (ASAP) for substance abuse. The Rehabilitation Testing is limited use information as defined in AR 600-85. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Status Evaluation (MSE), dated 28 February 2013, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with cannabis abuse, per AHLTA history. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 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 600-85 defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10-13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy includes: Results of command-directed drug or alcohol testing that are inadmissible le under the MRE; Results of a drug or alcohol test collected solely as part of a safety mishap investigation undertaken for accident analysis and the development of countermeasures; Information concerning drug or alcohol abuse or possession of drugs incidental to personal use, including the results of a drug or alcohol test, collected as a result of a Soldier's emergency medical care solely for an actual or possible alcohol or other drug overdose; A Soldier's self-referral to BH for SUD treatment; Admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to treatment and provided by Soldiers as part of their initial entry into SUD treatment; Drug or alcohol test results, if the Soldier voluntarily submits to a DoD or Army SUD treatment before the Soldier has received an order to submit for a lawful drug or alcohol test; and, the results of a drug or alcohol test administered solely as a required part of a DoD or Army SUD treatment program. e. 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) Chapter 9 outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to ASAP for alcohol or drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Army policy states that an honorable or general, under honorable conditions discharge is authorized depending on the applicant's overall record of service. However, an honorable discharge is required if limited use information is used in the discharge process. Paragraph 9-4 stipulates the service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. An honorable discharge is mandated in any case in which the Government initially introduces into the final discharge process limited use evidence as defined by AR 600-85. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the service was honorable and faithful. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends PTSD and a TBI contributed to the misconduct. The applicant's AMHRR contains no documentation of PTSD or TBI diagnosis. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 28 February 2013, which indicates the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with cannabis abuse, per AKLTA history. The MSE was considered by the separation authority. The ARBA sent a letter to the applicant at the address in the application on 21 May 2021 requesting documentation to support a PTSD diagnosis but received no response from the applicant. The applicant contends the use of marijuana was to help with anger and sleep problems. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant's separation packet contains an electronic DD Forms 2624 (Specimen Custody Document for Drug Testing), which shows a urinalysis test coded "RO," which indicates "Rehabilitation Testing." The government introduced these documents into the discharge process, revealing the applicant had been referred to the Army Substance Abuse Program (ASAP) for substance abuse. The Rehabilitation Testing is limited use information as defined in AR 600-85. 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 civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment DO with anxiety and depressed mood; Closed Skull Fracture; PTSD; TBI. (2) Did the condition exist or experience occur during military service? Yes. Board's Medical Advisor found military medical records indicate the diagnoses of Adjustment DO and Closed Skull Fracture were made while applicant was in active service. VA service connection of 70% for PTSD and TBI establishes these conditions occurred during military service (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 two mitigating BH conditions, PTSD and TBI. As there is an association between PTSD and TBI and use of illicit substances to self-medicate symptoms, there is a nexus between the diagnoses of PTSD and TBI and the wrongful use of marijuana. (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. As a result, the ADRB applied liberal consideration and found that the applicant's PTSD/TBI outweighed the marijuana use basis for separation for the aforementioned reason(s). b. Response to Contentions: (1) The applicant contends the service was honorable and faithful. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. (2) The applicant contends PTSD and a TBI contributed to the misconduct. The Board considered this contention, and the Board's Medical Advisor found that the applicant has two mitigating BH conditions, PTSD and TBI. As there is an association between PTSD and TBI and use of illicit substances to self-medicate symptoms, there is a nexus between the diagnoses of PTSD and TBI and the wrongful use of marijuana. Thus, relief is warranted. (3) The applicant contends the use of marijuana was to help with anger and sleep problems. The Board considered this contention, and the Board's Medical Advisor found that the applicant has two mitigating BH conditions, PTSD and TBI. As there is an association between PTSD and TBI and use of illicit substances to self-medicate symptoms, there is a nexus between the diagnoses of PTSD and TBI and the wrongful use of marijuana. Thus, relief is warranted. c. The Board determined the discharge is improper based on the applicant's PTSD and TBI mitigating the applicant's drug use and limited use policy violation by command d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the command introduced Limited Use information into separation proceedings, which is not permitted in accordance with AR 600-85 as outlined in section 8 of this document. Thus the prior characterization is improper. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) because the applicant's PTSD and TBI mitigated the applicant's misconduct of marijuana abuse, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 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 AR20200002408 1