1. Applicant's Name: a. Application Date: 13 February 2020 b. Date Received: 3 April 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 under other than honorable conditions. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant further requests a reentry (RE) code, separation program designator (SPD) code, and narrative reason change. The applicant does not submit any issues of equity of propriety to be considered by the board. The applicant's DD Form 293 indicates post-traumatic stress disorder (PTSD), traumatic brain injury (TBI) and other mental health issues/conditions were related to the request. b. Board Type and Decision: In a records review conducted on 29 March 2023, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's TBI partially mitigating drug use as outlined in Section 9a, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. 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, Paragraph 14-12c (2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 16 December 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 March 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for dextroamphetamines and methamphetamines on 24 January 2013 and on 5 February 2013. The applicant also adulterated a urine sample on 24 January 2013 (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: On 5 November 2013, the board found the allegation of use of dextroamphetamines and methamphetamines between on or about 21 January 2013 and 24 January 2013 and between on or about 2 February 2013 and 5 February 2013 were supported by the evidence and warranted separation. The allegation of adulteration of a urine sample on 24 January 2013, was not supported by the evidence and did not warrant separation. The board recommended the applicant be separated from the U.S. Army with an under other than honorable conditions characterization of service. (6) Separation Decision Date / Characterization: 10 December 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 December 2010 / AMHRR is void of reenlistment contract) b. Age at Enlistment / Education / GT Score: 23 / GED / 94 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19K10, R4 M1 Armor Crewman / 6 years, 3 days d. Prior Service / Characterizations: RA, 10 May 2007 - 12 December 2010 / HD e. Overseas Service / Combat Service: SWA / Iraq (6 August 2009 - 15 July 2010), Afghanistan (11 December 2011 - 3 December 2012) f. Awards and Decorations: ACM-CS, PH, ARCOM-2, AAM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR-2, NATO MDL g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: GOMOR, dated 17 October 2008, reflects the applicant was reprimanded for driving under the influence of alcohol. On or about 26 April 2008, the applicant was apprehended by military law enforcement officials on Fort Lewis, Washington, for suspicion of driving under the influence of alcohol. Prior to the applicant's apprehension, an officer responded to the scene of an injury accident. The applicant was transported to Madigan Hospital, treated and released. Further investigation revealed the smell of alcohol on the applicant's breath. The applicant submitted to having blood drawn which resulted in a finding of .06 grams of alcohol per 100 milliners of blood. The applicant was under the age of 21 at the time of the incident. FG Article 15, 18 April 2013, reflects the applicant wrongfully used d-amphetamine on or about 14 January 2013 and between on or about 1 February 2013 and 2 February 2013. The punishment consisted of reduction to specialist/E-4; forfeiture of $1,152 pay per month for 2 months; and restriction and extra duty for 45 days, suspended, to be automatically remitted if not vacated before 17 June 2013. A DA Form 4187 (Personnel Action), dated 13 May 2013, reflects the applicant's duty status changed form present for duty to AWOL effective 13 May 2013. Memorandum, subject: Legal Review of Administrative Separation Board of [Applicant], dated 2 December 2013, reflects after a review of the record of proceedings for the Administrative Separation Board of [Applicant] under the standards set forth in AR 635-200 and AR 16-6, found the proceedings legally sufficient. The memorandum indicates the applicant was not present for the board because the applicant was AWOL, but the applicant had received proper notification of the Board's proceedings and representation by counsel from the Trial Defense Service. i. Lost Time / Mode of Return: AWOL X 217 days (13 May 2013 - 16 December 2013) / NIF j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: A Report of Mental Status Evaluation, dated 15 April 2013, reflect the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant has a diagnosis of phase of life circumstances. The MSE indicates the applicant had a negative screen for PTSD and a positive screen for TBI. The MSE further indicates the applicant had to clear TBI to continue processing under the provisions of AR 635-200, chapter 14. 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) 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-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 did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant further requests a RE code, SPD code, and narrative reason change. The applicant requests the narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 12c(2), 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 635-5, Separation 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 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 reason or authority to be entered under this regulation. The applicant requests the SPD and RE codes be changed. Separation codes are three- character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of 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 and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 12c(2), is "JKK." Army Regulation 635-5, Separation 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-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. The applicant does not submit any issues of equity of propriety to be considered by the board. The applicant's DD Form 293 indicates PTSD, TBI and other mental health issues/conditions were related to the request. The applicant's AMHRR contains documentation which supports a positive screen for TBI. The record shows the applicant underwent a MSE on 15 April 2013, which indicates the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The MSE further indicates the applicant had a positive TBI screen and had to clear TBI to continue processing under the provisions of AR 635-200, chapter 14. The AMHRR is void of a clearance for TBI prior to the separation. 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: TBI. Additionally, the applicant asserts PTSD, 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 the applicant's TBI condition occurred while in service. Further, the applicant listed PTSD in-service on the application submitted to ARBA. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that, based on the available information, the applicant's mild TBI/concussion mitigates some of the misconduct. As there is an association between mTBI and the use of illicit drugs to self-medicate emotional symptoms, there is a nexus between the experience and the offenses of wrongful use of amphetamines. Mild TBI does not, however, mitigate the offense of adulterating a urine sample given that mild TBI does not affect one's ability to distinguish right from wrong and act in accordance with the right. The applicant did not submit any evidence of a PTSD diagnosis by a qualified medical professional nor illustrate how symptoms may have influenced behavior. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's mTBI or asserted PTSD outweighed the totality of the applicant's misconduct as outlined below. b. Response to Contention(s): The applicant did not submit any issues of equity of propriety to be considered by the Board. The Board took into account the totality of the applicant's service record to include the findings of the discharging authority, drug uses, AWOL, and underage DUI with injury. Nevertheless, the Board determined that partial relief was warranted based on the applicant's TBI offering partial mitigating for the applicant's drug abuse as a means of self-medication to treat symptoms. However, there is insufficient evidence that further relief is warranted with the available information. There is no information to support the applicant's PTSD claim by a qualified medical professional. Due to the numerous offenses that were not mitigated by the applicant's TBI, the assertion alone did not outweigh the remaining misconduct. The applicant's record was not sufficiently meritorious to warrant an honorable discharge. c. The Board determined that the characterization of service was too harsh based on the applicant's TBI partially mitigating drug use as outlined in Section 9a, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. 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 General, Under Honorable Conditions because the applicant's mTBI mitigated the applicant's misconduct of drug abuse as outlined in Section 9b, above. Thus the prior characterization was deemed too harsh. However, the remaining misconduct as outlined in section 9c, above, had no medical mitigation or additional circumstances sufficient enough to outweigh the totality of the applicant's recorded misconduct. The applicant's record was not sufficiently meritorious to warrant an honorable discharge. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 AR20200006515 1