1. Applicant's Name: a. Application Date: 9 January 2020 b. Date Received: 13 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, along with a reentry (RE) code, separation program designator (SPD) code, and a narrative reason change. The applicant seeks relief contending, in effect, the misconduct was an isolated incident. The applicant contends rehabilitation should have been offered as it was to other Soldiers. The applicant contends sexual harassment led to the substance abuse. There was honorable service. The discharge is preventing the applicant from securing certain occupations and the applicant desires to serve the country and community in some capacity. b. Board Type and Decision: In a records review conducted on 4 November 2022, and by a 5-0 vote, the Board determined the discharge is inequitable due to the applicant's PTSD/MST/OBH fully outweighing the applicant's drug abuse, disrespect, and disobedience. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed 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. 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: 23 December 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 November 2009 (2) Basis for Separation: The applicant was informed of the following reasons: On 14 August 2009, the applicant failed a urinalysis test for marijuana use. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 November 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 December 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 January 2008 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 119 c. Highest Grade Achieved / MOS / Total Service: E-3 / 25U10, Signal Support Specialist / 1 year, 11 months, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Trial by Summary Court-Martial held on 2 October 2009, reflects the applicant pled guilty and was found guilty of disrespect to a superior NCO; two specifications of willfully disobeying an NCO; wrongful use of marijuana; and two specifications of wrongful use of cocaine. The punishment consisted of reduction to private/E-1; forfeiture of $933; and confinement for 30 days. A Report of Mental Status Evaluation dated 16 September 2009, reflect the applicant had the mental capacity to understand and participate in the proceedings and was mental responsible. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 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 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 14-3 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. (6) 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. (7) 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 "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 waiverable and nonwaiverable 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 waiverable. Eligibility: Ineligible unless a waiver is granted. 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'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 along with a narrative reason, RE and SPD code change. The applicant requests the narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-22 with a general (under 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 requests a RE and SPD code change. Separation code are three-character alphabetic combinations that identify reasons for and types of separation from active duty. The primary purpose of the SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection of and analysis of separation data. SPD codes are controlled by OSD and then implementation in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulation for a discharge under Chapter 14, paragraph 14-12c(2), is "JKK." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the separation code entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) codes. The regulation stipulates no deviation is authorized. There is no provision for any other SPD code to be entered under this regulation. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends the misconduct was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends rehabilitation should have been offered as it was to other Soldiers. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the case. The applicant contends sexual harassment led to the substance abuse. 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 states there was honorable service. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the discharge is preventing the applicant from securing certain occupations and the applicant desires to serve the country and community in some capacity. The Board does not grant relief to gain employment or enhance employment opportunities. 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 that the applicant has the following potentially mitigating diagnoses/experiences: Adjustment Disorders with Grief Reaction, Depressed Mood, and disturbance of emotions and conduct; Bipolar II Disorder, Major Depressive Disorder (MDD) and PTSD. Additionally, the applicant asserts sexual harassment, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that while on active duty, the applicant's Adjustment Disorders and Bipolar II Disorder were diagnosed in service. VA has established service connection for MDD and PTSD. Additionally, the applicant asserts sexual harassment while on active duty. (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 mitigating BH condition, MDD/PTSD, and a mitigating BH experience, Sexual Harassment, given the nexus between MDD, PTSD and Sexual harassment and the use of illicit drugs to self- medicate painful emotional symptoms. (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 MDD/PTSD/MST/Adjustment Disorders fully outweighed the applicant's misconduct of drug abuse, disrespect, and disobedience. b. Response to Contentions: (1) The applicant contends the misconduct was an isolated incident. 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 MDD/PTSD/MST/Adjustment Disorders fully outweighing the applicant's misconduct of drug abuse, disrespect, and disobedience. (2) The applicant contends rehabilitation should have been offered and it was to other Soldiers. 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 MDD/PTSD/MST/Adjustment Disorders fully outweighing the applicant's misconduct of drug abuse, disrespect, and disobedience. (3) The applicant contends the discharge is preventing the applicant from securing certain occupations and the applicant desires to serve the country and community in some capacity. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. c. The Board determined the discharge is inequitable due to the applicant's PTSD/MST/OBH fully outweighing the applicant's drug abuse, disrespect, and disobedience. However, the applicant may request a personal appearance hearing to address further issues before the Board. 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 Honorable because the applicant's MDD/PTSD/MST/Adjustment Disorders fully outweighed the applicant's misconduct of drug abuse, disrespect, and disobedience due to known connection between these diagnoses/experiences and self-medication with illicit substances and difficulty with authority. Thus, the prior characterization is no longer appropriate. (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 voted to not change the RE code due to the mitigating condition being service-limiting. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: 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 AR20200003687 1