1. Applicant's Name: a. Application Date: 2 December 2019 b. Date Received: 9 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the one mistake the applicant made should not define this whole enlistment, because of taking pride in being a Soldier and always giving the full effort and attention to getting better. The applicant proudly earned an early promotion to PFC and continued to strive to be better. The applicant was diagnosed with a concussion during one of the airborne operations, and subsequently, a car accident aggravated the concussion, which placed the applicant on a temporary profile. The applicant was not sleeping well at night, which caused the decision to self-medicate with CBD to help with falling asleep. The applicant researched CBD and found many others with concussions used CBD for headaches and improve sleep. One morning, when the applicant missed a first formation at 0545, the applicant was found unconscious and unresponsive. The applicant was hospitalized for three days. It was determined the reason for the loss of consciousness was connected to CBD; however, the toxicology report indicated no drugs in the applicant's system. An investigation was initiated after the discharge from the hospital. The applicant was advised to make a statement before knowing any of the rights, because there was a ton of pressure to make the statement. The applicant was upfront and honest about the mistake made. The applicant received the maximum FG Article 15 punishment, 45 days of extra duty and reduction to E-1. The applicant took the punishment and moved forward. Unfortunately, it was not enough, the applicant was involuntarily separated. Looking back at what happened, the applicant was ashamed of the events leading to the separation from the military. The applicant wanted to complete the enlistment contract and continue serving. The applicant understood clearly the mistake made but did not let it define the remaining days left of the service. The applicant attended counseling because of a true desire to compensate for the mistake, and again be a part of the company the applicant once thrived in. The applicant has not let the mistake define the civilian life. The applicant learned tremendously and has grown as a person throughout the process. In looking at the future, it is very important for the applicant to do everything in the power to try and remedy the discharge. The applicant misses serving and would like the opportunity to serve again. b. Board Type and Decision: In a records review conducted on 28 September 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's length and the circumstances surrounding the discharge (TBI diagnosis). 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 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: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 9 August 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 June 2018 (2) Basis for Separation: The applicant was informed of the following reasons: On 29 March 2018, the applicant wrongfully used Cannabidiol Oil, a controlled substance. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 12 June 2018, the applicant declined/waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 29 June 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 April 2016 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P, Infantryman / 2 years, 3 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA Disciplinary Action(s) / Evidentiary Record: Investigative Datasheet, dated 5 April 2018, reports the applicant was the subject of an investigation for wrongful use, possession, distribution of a controlled substance. A Developmental Counseling Form for missing formation and drug overdose. FG Article 15 dated 15 May 2018, for wrongfully using Cannabidiol Oil On 29 March 2018. The punishment consisted of a reduction to E-1; forfeiture of $819; and extra duty and restriction for 45 days. h. Lost Time / Mode of Return: None i. Diagnosed PTSD / TBI / Behavioral Health: Sworn Statement, dated 29 March 2018, reflects SGT L. A. R., rendering a statement the applicant being on a restricted work due to a diagnosed TBI. Report of Medical History, dated 22 May 2018, the examining medical physician noted in the comments section behavioral health issues and treatment. Report of Mental Status Evaluation (MSE), dated 6 June 2018, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The MSE noted a BH diagnosis as "Cannabis Use Disorder." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; FG Article 15 documents; ERB; Record of Emergency Date; Enlistment Document; and Contents of Separation Packet. 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), 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) 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. (5) 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. (6) 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, 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 Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the one mistake made should not define the whole enlistment, because of taking pride in being a Soldier and always giving the full effort and attention to getting better. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends, while serving, the applicant proudly earned an early promotion to PFC and continued to strive to be better. The applicant's service accomplishments and the quality of the service prior to the incidents that caused the initiation of discharge proceeding will be carefully considered by the board according to the DODI 1332.28. The applicant contends having been diagnosed with a concussion during an airborne operation, and subsequently, a car accident aggravated the concussion, which caused the applicant to not sleep well at night and a decision to self-medicate with CBD to help with falling asleep. The applicant's AMHRR contains documentation which supports a diagnosis of in-service of TBI. The record also shows the applicant underwent a mental status evaluation (MSE) on 6 June 2018, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE also noted a BH diagnosis as "Cannabis Use Disorder." The MSE was considered by the separation authority. The applicant contends being pressured to make a statement before knowing any of the rights. However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant missing serving and desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 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: applicant has been diagnosed with the following potentially mitigating BH condition: TBI. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnosis of TBI was made during military service. (3) Does the condition or experience excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH condition, TBI. As there is an association between TBI and use of illicit drugs to self-medicate both physical and emotional symptoms, there is a nexus between his diagnosis of TBI and his wrongful use of cannabidiol oil. Furthermore, as there is an association between TBI and avoidant behavior, there is a nexus between his diagnosis of TBI and his failure to report. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience outweighed the basis of separation. b. Response to Contention(s): (1) The applicant contends the one mistake made should not define the whole enlistment, because of taking pride in being a Soldier and always giving the full effort and attention to getting better. The Board considered this contention and the applicant's assertion of an isolated incident. However, based upon the details in the records, the Board voted to grant relief in the form of an upgrade in the characterization to Honorable. (2) The applicant contends having proudly earned an early promotion to PFC and continued to strive to be better. 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 TBI fully outweighing the applicant's FTRs and drug abuse basis for separation. (3) The applicant contends having been diagnosed with a concussion during an airborne operation, and subsequently, a car accident aggravated the concussion, which caused the applicant to not sleep well at night and a decision to self-medicate with CBD to help with falling asleep. The Board determined this contention was valid after review of the applicant's DOD and VA health records. It revealed the applicant was diagnosed in service with TBI, which fully mitigated the basis of separation. (4) The applicant contends being pressured to make a statement before knowing any of the rights. 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 TBI fully outweighing the applicant's FTRs and drug abuse basis for separation. (5) The applicant misses serving and desires to rejoin the Military Service. The Board determined recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. c. The Board determined the discharge is inequitable based on the applicant's length and the circumstances surrounding the discharge (TBI diagnosis). 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 reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's TBI mitigated the applicant's misconduct of drug abuse and FTRs. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, 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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 a. 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 AR20200002581 1