1. Applicant's Name: a. Application Date: 11 February 2020 b. Date Received: 8 May 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 general (under honorable conditions). The applicant requests an upgrade to honorable and a change to the narrative reason. The applicant seeks relief contending, in effect, the injustice of being discharged was based on a minor infraction related to PTSD. Prior to enlistment the applicant witnessed the death of a brother and a sister, which caused the PTSD to develop and led to other symptoms and behaviors. The applicant's current discharge based on a false positive drug test, an isolated incident, reflects multiple injustices, including the narrative reason. The issues and behaviors observed during the applicant's service are the direct result of mental health issues caused by traumas before and during service. The applicant's service was honorable with numerous awards, including a Silver Spurs award by Order of the Winged Spur and receiving a coin from a three-star General. The one positive drug test does not outweigh the faithful service for the three years despite the significant PTSD symptoms the applicant was experiencing at the time. The entitlement to an upgrade is based on the applicant experiencing PTSD, Anxiety Disorder, Depressive Disorder, positive TBI, and sleep disorder, health conditions exacerbated during the service because of trauma; the applicant meeting all four criteria of the Kurta Memo; the applicant's quality of service and post-service achievements; and the applicant using drug to self-medicate the mental health symptoms, not a willful act. Many veterans have received honorable characterization of service despite minor or isolated misconduct. The applicant's PTSD arose during service and clearly existed at the time of the discharge. The military psychologists had diagnosed the applicant with PTSD. The misconduct not being severe but consisting solely of self-medication, does not outweigh the mitigation to be afforded because of the applicant's underlying PTSD. It would be unjust to penalize the applicant for a behavior resulting from mental wounds incurred when witnessing the deaths of a brother and sister, and a head injury incurred while serving. The applicant's letter of support and certificates are testament of the honorable service and character. b. Board Type and Decision: In a records review conducted on 22 February 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD, Major Depressive Disorder (MDD), and TBI mitigating the applicant's drug abuse and violating a Military Protection Order (MPO). 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 / General (Under Honorable Conditions) b. Date of Discharge: 5 December 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 October 2019 (2) Basis for Separation: The applicant was informed of the following reasons: On 25 May 2019 and on 30 May 2019, the applicant used cocaine. On 24 September 2019, the applicant violated a Military Protection Order by contacting Ms. K. M. approximately 11 times via text message. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 29 October 2019 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 November 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 October 2016 / 3 years, 26 weeks b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92F10, Petroleum Supply Specialist / 3 years, 1 month, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM, GWOTSM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Developmental Counseling Forms for: positive urinalysis on 30 May 2019; violating a military protective order on 24 September 2019; and failing to be at appointed place of duty. Electronic Copy of DD Form 2624, dated 18 June 2019, reflects the applicant tested positive for COC 168 (Cocaine), during an Inspection Random (IR) urinalysis testing, conducted on 30 May 2019. Commander's recommendation, dated 7 November 2019, reflect the commander noted the applicant has been an issue throughout the command with multiple issues of behavior, which led the commander to giving the applicant a company grade Article 15 (NIF) before the separation being finalized. Commander's Report, dated 7 November 2019, reflects the applicant was reduced in rank from E-3 to E-2 on 1 June 2018. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 20 September 2019, the applicant noted behavioral health issues and was currently seeing behavioral health for the conditions. The examining medical physician referred to seeing AHLTA. Report of Mental Status Evaluation, dated 23 October 2019, reflects the applicant was psychologically cleared for any administrative actions deemed appropriate by the command, and there was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels. The applicant had been screened for PTSD and mTBI with positive results. The positive screens indicate: "PTSD (prior to military), Depression, and TBI (prior to the military from sports participation and also mentioned combative events the applicant participated in while in Korea) were found to be positive." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 with Attorney Brief and listed attachments as Exhibits A through F. 6. POST SERVICE ACCOMPLISHMENTS: The applicant gained employment with the Sheraton Hotel in New Orleans, and has a goal of attending college, in pursuance of a degree in business administration. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board) sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 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(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, 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 and a narrative reason change. The applicant's Army Military Human Resource Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs to be changed. 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." Army Regulation 635-8, Separation Processing and Documents, governs 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 to be entered under this regulation. The applicant contends the injustice of the discharge was based on a minor infraction and an isolated incident related to PTSD. The applicant claims the offense leading to the discharge was minor and isolated. The AMHRR indicates the applicant committed a discrediting offense. 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 the discharge based on a false positive drug test reflects multiple injustices, including the narrative reason. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends having an honorable service with numerous awards, including a Silver Spurs award by Order of the Winged Spur, and receiving a coin from a three-star General. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends experiencing PTSD, Anxiety Disorder, Depressive Disorder, positive TBI, and sleep disorder, health conditions which were exacerbated during the service because of trauma, and the PTSD being diagnosed by military psychologists. The applicant's AMHRR contains documentation which supports findings of positive results for the PTSD and mTBI screenings, PTSD (prior to military), Depression, and TBI (prior to the military from sports participation and from participating in combative events while in Korea) when the applicant underwent a mental status evaluation (MSE) on 23 October 2019. The MSE was considered by the separation authority. The applicant contends post achievements by gaining an employment. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends other Soldiers with minor or isolated misconduct were discharged with honorable characterization of service. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the case. The applicant's letter of support and certificates are testament of the honorable service and character. The third-party statement provided with the application speak highly of the applicant's character and recognizes the applicant's good conduct after leaving the Army. 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; MDD; PTSD; mild TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnoses of Anxiety DO, unspecified; MDD; PTSD were made while applicant was on active duty. VA service connection of 50% establishes that the diagnosis of PTSD occurred during military service. (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 several mitigating conditions, specifically PTSD, MDD and TBI. As there is an association, both individually and as a group, between these diagnoses and use of illicit medications to self- medicate painful emotional symptoms, there is a nexus between these conditions and the applicant's wrongful use of cocaine. As there is an association between PTSD and problems with authority figures, there is a nexus between his diagnosis of PTSD and his multiple texting violations of his Military Protective Order. Record review reveals that the applicant's significant pre-service trauma and depressive symptoms were clearly exacerbated by military service. (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, MDD and TBI outweighed the drug use and MPO violations for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and determined that relief was warranted based on the medical mitigation as outlined in section 9a(3) above. (2) The applicant contends the injustice of the discharge was based on a minor infraction and an isolated incident related to PTSD. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board considered this contention and determined that the applicant's PTSD/TBI/MDD mitigated the offenses which warranted discharge, and after medical mitigation relief was granted. (3) The applicant contends the discharge based on a false positive drug test reflects multiple injustices, including the narrative reason. The Board considered this contention but determined it to be contradictory to the prior contention since this contention of false positive contradicts the prior contention of the drugs being used to self-medicate, the Board did not address this contention specifically. (4) The applicant contends having an honorable service with numerous awards, including a Silver Spurs award by Order of the Winged Spur, and receiving a coin from a three- star General. 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 PTSD/TBI/MDD fully outweighing the applicant's violation of MPO and drug abuse basis for separation. (5) The applicant contends experiencing behavioral health issues including PTSD and TBI, conditions which were exacerbated during the service because of trauma, and the PTSD was diagnosed by military psychologists. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board considered this contention and determined that the applicant's PTSD/TBI/MDD mitigated the offenses which warranted discharge, and after medical mitigation relief was granted (6) The applicant contends other veterans with minor or isolated misconduct were discharged with honorable characterization of service. The Board considered this contention but ultimately did not address it due to the lack of specifics to which a comparison in the discharges could be applied. However, relief was granted based on the medical mitigation as described above. (7) The applicant's letter of support and certificates are testament of the honorable service and character. 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 PTSD/TBI/MDD fully outweighing the applicant's violation of MPO and drug abuse basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD, Major Depressive Disorder (MDD), and TBI mitigating the applicant's drug abuse and violating a Military Protection Order (MPO). 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/TBI/MDD mitigated the applicant's misconduct of cocaine abuse and MPO violations. 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 also 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 AR20200006625 1