1. Applicant's Name: a. Application Date: 6 January 2020 b. Date Received: 8 January 2020 c. Counsel: 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, through counsel, an upgrade to honorable or general (under honorable conditions) and a narrative reason change. The applicant seeks relief contending, in effect, the applicant's discharge is inequitable because mental health issues, to include post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) were mitigating factors in the applicant's misconduct. The applicant was self-medicating to relieve the mental health issues. The applicant's counsel also contends the discharge is inequitable because the applicant's service meets the criteria for an honorable or general (under honorable conditions) discharge. The applicant served honorable for over two years and received multiple awards. b. Board Type and Decision: In a records review conducted on 29 March 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD/TBI diagnoses mitigated the AWOL, disrespect, disobedience, and cocaine abuse as detailed in section 9a of this document. 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. 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: 8 January 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 November 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was absent from the unit without authority from on or about 25 August 2008 until on or about 30 September 2008; the applicant was disrespectful towards a commissioned officer on or about 30 October 2008; the applicant failed to obey a lawful order on or about 30 October 2008; and between on or about 30 September and 6 October 2008, the applicant wrongfully used cocaine. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 November 2008 (5) Administrative Separation Board: Applicant waived consideration of the case by an administrative separation board. (6) Separation Decision Date / Characterization: 18 December 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 September 2006 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 20 / GED / 119 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 3 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (5 January 2007 - 13 March 2008) f. Awards and Decorations: ICM, ARCOM, NDSM, GWOTSM, ASR, OSR, CIB, Parachutist Badge, German Armed Forces Parachutist Badge-Bronze g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Trial by Summary Court Martial on 19 November 2008, reflects the applicant pled guilty and was found guilty of being absent without leave from on or about 25 August 2008 until on or about 30 September 2008; behaving with disrespect towards a commissioned officer on 30 October 2008; willfully disobeyed a lawful command on or about 30 October 2008; and wrongfully used cocaine on or about 6 October 2008. The punishment consisted of reduction to private/E-1; forfeiture of $898 pay; and confinement for 30 days. i. Lost Time / Mode of Return: AWOL x 37 days (25 August 2008 - 30 September 2008) / NIF; Confinement x 25 days (21 November 2008 - 15 December 2008) j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides a VA Rating Decision, dated 21 March 2011, which indicates the applicant is service connected for PTSD with an evaluation of 100 percent effective 9 January 2009. (2) AMHRR Listed: Mental Health Evaluation, dated 14 November 2008, reflects the applicant had the mental capacity to participate in the proceedings and was mentally responsible/able to distinguish between right and wrong. The applicant was diagnosed with anxiety disorder NOS (not medically disqualifying); personality disorder traits (narcissistic, R/O personality disorder, NOS; neck pain; and occupational problems. The applicant was issued a temporary P2 profile due to anxiety disorder, NOS on 13 November 2008. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Counsel's Brief with a total of 31 exhibits 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. 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). 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, through counsel, an upgrade to honorable or general (under honorable conditions) and a narrative reason change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge should be changed. 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 this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-8, Separation Processing and Documents, governs the 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 listed in tables 2-2 or 2-2 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 this regulation. The applicant's counsel contends the applicant's discharge is inequitable because mental health issues, to include PTSD and TBI were mitigating factors in the applicant's misconduct. The applicant's AMHRR contains documentation which supports a diagnosis of in-service anxiety disorder NOS (not medically disqualifying) and personality disorder traits (narcissistic, R/O personality disorder, NOS. The record shows the applicant underwent a mental status evaluation on 14 November 2008, which indicates the applicant had the mental capacity to participate in the proceedings and was mentally responsible/able to distinguish between right and wrong. The applicant was issued a temporary P2 profile due to anxiety disorder, NOS on 13 November 2008. The MSE/BHE was considered by the separation authority. The applicant's counsel contends the applicant was self-medicating to relieve the mental health issues and is entitled to an upgrade of the discharge because of mitigating circumstances which contributed to the misconduct. While the applicant may believe that the self-medicating was to relieve the mental health issues was the underlying cause of the misconduct, the AMHRR of evidence does not demonstrate that the applicant sought relief from this issue through the command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. The applicant's counsel contends the discharge is inequitable because the applicant's service meets the criteria for an honorable or general (under honorable conditions) discharge. The applicant served honorable for over two years and received multiple awards. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. 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 that the applicant has the following potentially-mitigating diagnoses/experiences: Anxiety Disorder; PTSD; Concussion (mTBI). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnoses of Anxiety DO and TBI were made while the applicant was on active duty and the applicant is 100% service-connected for PTSD. (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/TBI and avoidant behavior, there is a nexus between these conditions and the applicant's offenses of AWOL. As there is an association between PTSD/TBI and oppositional defiant behaviors, there is a nexus between these conditions and the offenses of failing to obey a lawful order and disrespecting a superior officer. Finally, as there is an association between PTSD/TBI and self- medication with alcohol and/or illicit substances to treat painful emotional symptoms, there is a nexus between these conditions and the wrongful use of cocaine. (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 misconduct for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant's counsel contends the applicant's discharge is inequitable because mental health issues, to include PTSD and TBI were mitigating factors in the applicant's misconduct, specifically self-medication was used to treat mental health symptoms. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD/mTBI mitigated the applicant's AWOL, disrespect, disobedience, and cocaine abuse as detailed in Section 9a, above. (2) The applicant's counsel contends the discharge is inequitable because the applicant's service meets the criteria for an honorable or general (under honorable conditions) discharge. The Board considered this contention on the totality of the applicant's service warranting upgrade, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD/mTBI outweighing the misconduct. c. The Board determined the discharge is inequitable based on the applicant's PTSD/mTBI diagnoses mitigated the AWOL, disrespect, disobedience, and cocaine abuse as detailed in Section 9a of this document. 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. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD/mTBI diagnoses mitigated the AWOL, disrespect, disobedience, and cocaine abuse as detailed in Section 9a of this document. 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 RE code will not change, as the mitigating conditions are service-limiting. 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 AR20200002843 1