1. Applicant's Name: a. Application Date: 13 May 2020 b. Date Received: 19 May 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 requests an upgrade to honorable, and a change to the separation program designator (SPD), reentry eligibility (RE) code, and narrative reason. The applicant seeks relief contending, in effect, the applicant was forced to self-admit for substance abuse help after being denied by the company commander. The company commander disregarded guidance per Army Regulation (AR) 600-85 (The Army Substance Abuse Program (ASAP)). In addition, subsequent intensive outpatient treatment directed by Army Regulation and checklist was denied by the company commander and the executive officer and instructed the applicant to utilize the lunch hour to attend narcotics or alcoholics anonymous meetings. The applicant was not afforded the proper treatment at phase one which has burdened the applicant's life as evidenced in the Veterans Affairs Outpatient Substance Abuse Clinic. Board Type and Decision: In a records review conducted on 19 May 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Post Traumatic Stress Disorder and Traumatic Brain Injury outweighing the applicant's drug abuse misconduct. 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. The Board determined the reentry code is 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 / Under Other Than Honorable Conditions b. Date of Discharge: 15 June 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 February 2011 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for COC (cocaine) on 3 January 2011. (3) Recommended Characterization: Dishonorable (4) Legal Consultation Date: 2 March 2011 (5) Administrative Separation Board: On 4 February 2012, the applicant was notified to appear before an administrative separation board and advised of rights. On 29 February 2012 the administrative separation board convened and the applicant's counsel was available telephonically. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. On an unspecified date, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 4 March 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 March 2010 / 6 years b. Age at Enlistment / Education / GT Score: 29 / NIF / 112 c. Highest Grade Achieved / MOS / Total Service: E6 / 92Y30, Unit Supply Specialist / 13 years, 4 months, 10 days d. Prior Service / Characterizations: RA, 5 February 1999 - 4 February 2002 / HD ARNG, 1 December 2001 - 14 September 2002 / HD USAR (Control Group (Annual Training), 15 September 2002 - 4 February 2003 / HD NIF, 5 February 2003 - 14 March 2006 (Reserve Obligation until 13 January 2007) USAR (TPU, not on AD), 15 March 2006 - 25 February 2007 AD, 26 February 2007 - 15 June 2012 / UOTHC e. Overseas Service / Combat Service: NIF f. Awards and Decorations: ASR g. Performance Ratings: August 2001 - December 2001 / Among The Best 26 February 2007 - 1 March 2008 / Fully Capable 2 March 2008 - 1 March 2009 / Among The Best 2 March 2009 - 5 June 2009 / Among The Best 6 June 2009 - 5 June 2010 / Among The Best 15 October 2010 - 8 May 2011 / Marginal 9 May 2011 - 3 March 2012 / Marginal h. Disciplinary Action(s) / Evidentiary Record: On 4 March 2012, the separation authority reduced the applicant from the rank of SSG to the rank of Private for a positive urinalysis. Report of Mental Status Evaluation, dated 9 May 2012, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. The evaluation consisted of a review of autobiographical documents, review of the applicant's medical chart, and a face-to-face interview. The applicant did not report, nor did the psychologist detect significant mental health problems that would prevent separation from the Army. The applicant's DD Form 214, reflects the applicant had completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12c (2), with a narrative reason of Misconduct (Drug Abuse). The DD Form 214 was authenticated with the applicant's electronic signature. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: An addendum to Disability Benefits Questionnaire, dated 13 September 2019, reflects the applicant's current Diagnostic and Statistical Manual of Mental Disorders-5 diagnoses as post-traumatic stress disorder with dissociative symptoms derealization, persistent depressive disorder (dysthymia) late onset with persistent major depressive episode, and attention-deficit/hyperactivity disorder (by history) combined presentation. The psychologist strongly recommended that the applicant seek out individual counseling and psychiatric treatment geared toward addressing symptoms. Prognosis was extremely guarded. Report of Consultation and Examination, dated 14 September 2019, reflects the applicant has a diagnosis of traumatic brain injury (TBI). It is as likely as not that the TBI is directly and causally related to two separate injuries (a parachute jump and motorcycle accident). The applicant was a paratrooper and completed over 50 career jumps with several hard landings. While stationed at Fort Bragg, there was strong crosswinds which caused the applicant to go backwards striking an upgrade of a hill, landing on the back. The applicant was dragged in the dirt approximately 50 meters with the parachute still open. The applicant lost consciousness for an indeterminate period of time which was followed by complete disorientation. The applicant was attended by the medics and was put on light duty. The applicant also suffered injuries from a 2007 motorcycle accident. The applicant's helmet was cracked from the impact of the collision. It is as likely as not that same is directly and causally related to the applicant's military service. This is a permanent condition. As of 3 February 2023, the applicant is pending a Veterans Affairs appeal that was submitted in February 2020 for major depressive disorder. (2) AMHRR Listed: MSE as described in previous paragraph 4h. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two DD Forms 214; Addendum to Disability Benefits Questionnaire; Report of Consultation and Examination; Petition for Discharge of Defendant (First Offender Act); house fire documents; motorcycle accident record; identification; documented loss of a Soldier; tax documents; emails; VA claim information; credit card information; credit reports. 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), 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 (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 changes to the SPD, RE code, and narrative reason. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career that ultimately caused the discharge from the Army. 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 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." AR 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, 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, in effect, the SPD code should be changed. The SPD 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. The 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 14-12c(2), is "JKK." The applicant contends, in effect, the RE code should be changed. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on AR 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends, in effect, the company commander disregarded guidance per AR 600- 85. In addition, subsequent intensive outpatient treatment directed by Army Regulation and checklist was denied by the company commander and executive officer and instructed the applicant to utilize the lunch hour to attend narcotics or alcoholics anonymous meetings. The applicant was not afforded the proper treatment at phase one which has burdened the applicant's life as evidenced in the Veterans Affairs Outpatient Substance Abuse Clinic (the applicant did not provide documents from this clinic). AR 600-85, paragraph 3-8 entitled self- referrals, states the applicant could have self-referred to the ASAP counseling center for assistance. The applicant did not submit any evidence, other than the applicant's statement, to support the contention that leadership disregarded guidance per AR 600-85 and denied outpatient treatment for ASAP. Analyst notes, the applicant's DD Form 214 for the period beginning 26 February 2007 and ending 15 June 2012 has a net active service of 6 years, 3 months, and 15 days, and should be 5 years, 3 months, and 20 days. 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: Post Traumatic Stress Disorder, Traumatic Brain Injury. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found both the diagnosis of PTSD and TBI have been determined by a DBQ examiner (PTSD) and a civilian provider (TBI) to have 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 two mitigating BH conditions, PTSD and mTBI. As there is an association between these conditions and use of illicit drugs to self-medicate symptoms, there is a nexus between applicant's diagnoses of PTSD and mildTBI and his wrongful use of cocaine. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's PTSD and mTBI outweighed the drug abuse basis for separation for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends, in effect, the company commander disregarded guidance per AR 600-85 (The Army Substance Abuse Program (ASAP)). The Board considered this contention but ultimately did not make a determination as the applicant's drug abuse basis for separation was found to be outweighed by the applicant's PTSD and mTBI. Therefore, a discharge upgrade is warranted. c. The Board determined the discharge is inequitable based on the applicant's Post Traumatic Stress Disorder and Traumatic Brain Injury outweighing the applicant's drug abuse misconduct. 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. The Board determined the reentry code is proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD and TBI outweighed the applicant's drug abuse misconduct. 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 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: 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 AR20200007015 1