1. Applicant's Name: a. Application Date: 7 December 2019 b. Date Received: 16 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 current characterization of service is not justified. The applicant contends that during the time in the military the applicant had an undiagnosed mental health condition and was unable to get help for because of the nature of the applicant's MOS and security clearance. This mental health condition was something the applicant now gets military disability for (70 percent). During the time in the military and before the applicant arrived at the duty station, the applicant was told both directly and indirectly that the applicant's clearance would be pulled if the applicant was on any type of mental health medication. The applicant makes no excuses for the actions while in the military; however, the applicant does feel that the undiagnosed mental health condition directly contributed to the inexcusable use of marijuana. After the incident, the applicant completed both the extra duty obligation and ASAP. As a Soldier, the applicant kept PT scores up and received many good monthly reviews. The applicant was told by leadership that if the applicant completed these things, the applicant would be allowed to re-class to a MOS without a clearance and stay in the Army. This was not the case, during this time the applicant was reassigned to work in a position that did not require a clearance. Leadership kept the applicant in this position for almost a year and then proceeded to chapter the applicant out of the military. The applicant was never told why the applicant was not allowed to re-class even after completing what was requested. The applicant believes if given the chance to get help and re-class, the applicant would have finished the military obligation and would have received an honorable discharge. b. Board Type and Decision: In a records review conducted on 23 September 2022, and by a 5-0 vote, the Board determined that the characterization of service was improper based on the applicant's command's decision to disregard the recommendation of a psychiatrist, to separate the applicant from the Army IAW AR 635-200 Chapter 5-17, prior to the illegal drug use, due to the BH diagnosis of Bipolar DO; Anxiety DO NOS; Unspecified Mood DO that all began prior to the applicant entering the military service. The Board determined the narrative reason for the applicant's separation is now inequitable. Therefore, the Board directed the issue of a new DD Form 214 upgrading the characterization of service to Honorable, changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. The Board determined the RE code was 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: 25 November 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 October 2009 (2) Basis for Separation: The applicant was informed of the following reasons: on or about 3 November 2008 and 3 December 2008 the applicant wrongfully used marijuana; On 9 November 2008, the applicant failed to report to his appointed place of duty at 0400 hours missions; On or about 28 September 2008 the applicant misused a government credit card to purchase alcohol; and On 12 January 2009 the applicant failed to report to the appointed place of duty 0630 PT Formation. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 October 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 November 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 June 2007 / 4 years b. Age at Enlistment / Education / GT Score: 19 / GED / 117 c. Highest Grade Achieved / MOS / Total Service: E-3 / 35N10, SIGINT Analyst / 2 years, 5 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 1 June 2009, for wrongful use of marijuana. The punishment consisted of reduction to E-1, forfeiture of $699.00 pay for two months, and extra duty and restriction for 45 days. Summarized Record of Proceedings Under Article 15 dated 30 October 2009, for stealing military funds of a value of about $144.02. The punishment consisted of extra duty for 14 days and restriction for 7 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 12 March 2009, indicates the applicant was diagnosed with an Axis I for Mood Disorder NOS; Cannabis Abuse and Alcohol Abuse in early full remission. It was noted that that applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. It was recommended that the applicant be separated from the Army IAW AR 635- 200 Chapter 5-17. Report of Mental Status Evaluation, dated 23 July 2009, which indicates the applicant was diagnosed with an Axis I for Mood Disorder NOS. It was noted that the applicant had the mental capacity to understand and participate in the proceedings; also, the applicant was evaluated and was recommended by MAJ T (Psychiatrist), for chapter 5-17 on 12 March 2009 thus the applicant warrant a disposition through medical/psychiatric channels. The applicant reported no suicidal or homicidal thought at the time. It was recommended that the applicant be separated from the Army IAW AR 635-200 Chapter 5-17. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; documents from separation packet to include (recommendation from legal counsel, letters of support, record of firing scorecards, Army Physical Fitness Test Scorecards, several counseling statements, Report of Mental Statues Evaluation); 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. 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 AMHRR 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 using marijuana, failing to report to appointed place of duty (x2), and misusing government credit card to purchase alcohol. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c (2), AR 635-200 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." The applicant seeks relief contending that the current characterization of service is not justified. The applicant contends that during the time in the military having an undiagnosed mental health condition that the applicant was unable to get help for because of the nature of MOS and security clearance. This mental health condition now gets military disability for (70 percent). The applicant contentions were noted; the Report of Mental Status Evaluation, dated 12 March 2009, in the applicant AMHRR indicates the applicant was diagnosed with an Axis I for Mood Disorder NOS; Cannabis Abuse and Alcohol Abuse in early full remission. It was noted that that applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. It was recommended that the applicant be separated from the Army IAW AR 635-200 Chapter 5-17. On 23 July 2009, a second Report of Mental Status Evaluation, indicated the applicant was diagnosed with an Axis I for Mood Disorder NOS. It was noted that the applicant had the mental capacity to understand and participate in the proceedings; also, the applicant was evaluated and was recommended by MAJ T (Psychiatrist), for chapter 5-17 on 12 March 2009 thus the applicant warrant a disposition through medical/psychiatric channels. The applicant reported no suicidal or homicidal thought at the time. It was recommended that the applicant be separated from the Army IAW AR 635-200 Chapter 5-17. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Bipolar DO; Anxiety DO NOS; Unspecified Mood DO. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant's diagnoses of Bipolar DO; Anxiety DO NOS and Unspecified Mood DO all began prior to the applicant entering military service, thus existed in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that, based on the available information and in accordance with the 2017 Kurta Clarifying Guidance (paragraph 13- "Liberal consideration is not required for cases involving pre-existing conditions which are determined not to have been aggravated by military service"), there are no mitigating BH conditions. While the applicant has been diagnosed with Bipolar Disorder, Anxiety Disorder, Unspecified Mood Disorder, Cannabis Abuse and Alcohol Abuse, these conditions existed prior to service and there is no indication they were aggravated by applicant's military service. It is the opinion of the Board's Medical Advisor, had applicant's unit followed BH's recommendation to separate via Chapter 5-17, the applicant's illicit use of marijuana likely would not have occurred. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's conditions outweighed the basis for applicant's separation. Had the applicant's unit followed BH's recommendation to separate via Chapter 5-17, the applicant's illicit use of marijuana likely would not have occurred. b. Response to Contention: The applicant seeks relief contending that the current characterization of service is not justified due to medical condition. The Board considered this contention and determined that this contention was valid and voted to upgrade the characterization of service due to the applicant's command's decision to disregard the recommendation of a psychiatrist, to separate the applicant from the Army IAW AR 635-200 Chapter 5-17, prior to the illegal drug use, due to the BH diagnosis of Bipolar DO; Anxiety DO NOS; Unspecified Mood DO that all began prior to the applicant entering military service. c. The Board determined that the discharge was improper based on the applicant's command's decision to disregard the recommendation of a psychiatrist in regard to medical conditions which existed prior to military service would be service-limiting. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service because of command's decision to disregard the recommendation of a psychiatrist, to separate the applicant from the Army IAW AR 635-200 Chapter 5-17, prior to the illegal drug use, due to the BH diagnosis of Bipolar DO; Anxiety DO NOS; Unspecified Mood DO that all began prior to the applicant entering the military service. This the characterization and narrative reason for discharge was improper. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts since the impropriety of the discharge does not fully excuse the applicant's decision to use illegal drugs. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted not to change the RE code due the applicant's medical conditions 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: 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 AR20200004216 1