1. Applicant's Name: a. Application Date: 11 October 2019 b. Date Received: 10 February 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. The applicant seeks relief contending, in effect, a chance to make oneself a more productive member of society, and to own up to the mistakes made while in service. The applicant enlisted into the United States Army with determination and expectations every other enlistee would have. Due to a high operational tempo the applicant experienced a high degree of stress and depression. The applicant failed to demonstrate good order and discipline by making a bad decision to try marijuana. The applicant would like the Board to consider upgrading discharge for the opportunity to earn a degree to better oneself. This discharge prevents the applicant from being employed. Currently homeless and living in a shelter or on the street. The applicant made a stupid mistake, and a discharge upgrade will make the applicant a worthy citizen. b. Board Type and Decision: In a records review conducted on 20 January 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, homelessness, time since discharge and the applicant's Adjustment Disorder with anxiety and depressed mood diagnosis. 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, Chapter 14-12c (2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 1 May 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 April 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for marijuana on three occasions and failed to be at appointed place of duty numerous time. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 4 April 2007 (5) Administrative Separation Board: The applicant unconditionally waived an administrative separation board. (6) Separation Decision Date / Characterization: 19 April 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 February 2006 / 4 years b. Age at Enlistment / Education / GT Score: 18 / High School Letter / 96 c. Highest Grade Achieved / MOS / Total Service: E-2 / 21E10, Heavy Construction Equipment Operator / 1 year, 2 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet, dated 5 December 2006, reflects the applicant was charged with: Charge I: violation of the UCMJ, Article 86 Specification 1: On or about 22 September 2006, fail to go at time prescribe to appointed place of duty. Specification 2: On or about 21 September 2006, fail to go at time prescribe to appointed place of duty. Specification 3: On or about 8 September 2006, fail to go at time prescribe to appointed place of duty. Specification 4: On or about 30 August 2006, fail to go at time prescribe to appointed place of duty. Charge II: violation of the UCMJ, Article 112a Specification 1: Between on or about 20 July 2006 and 21 August 2006, wrongfully used marijuana. Specification 1: Between on or about 1 September 2006 and 2 October 2006, wrongfully used marijuana. Electronic Copy of DD Form 2624, dated 28 December 2006, reflects the applicant tested positive for THC LOL (marijuana), during a Probable Cause (PO) urinalysis testing, conducted on 14 December 2006. Record of Trial by Summary Court-Martial, reflects the applicant was charged with: Four specifications of violation of Article 86: Plea Guilty Finding Guilty. Two specifications of violation of Article 112a: Plea Guilty Finding Guilty. The sentenced adjudged: Forfeiture $972 for one month and, hard labor without confinement for 21 days. Report of Result of Trial reflects the applicant was tried in a Summary Court-Martial on 31 January 2007. The applicant was charged with six specifications. The summary of offenses, pleas, and findings: Violation of Article 86, Failure to report: On 31 January 2007; guilty consistent with the plea; On 31 January 2007; guilty, consistent with the plea; On 31 January 2007; guilty, consistent with the plea; and On 31 January 2007; guilty, consistent with the plea. Violation of Article 112a, Wrongful use: On 31 January 2007; guilty, consistent with the plea; and, On 31 January 2007; guilty, consistent with the plea. Sentence: Forfeiture $972 pay and hard labor without confinement for 21 days. FG Article 15, dated 21 March 2007, for wrongfully using marijuana (between on or about 15 November 2006 to 14 December 2006). The punishment consisted of a reduction to E-1; forfeiture of $650 pay per month for two months and, extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 29 January 2007, the examining medical physician noted in the comments section: Depressed or worried about family. Mental Status Evaluation, dated 15 February 2007, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with a clear-thinking process. The applicant was diagnosed with: Carries substance abuse diagnosis. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; Two DD Form 293s. 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 (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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends experienced a high degree of stress and depression. Report of Medical History, dated 29 January 2007, the examining medical physician noted in the comments section: Depressed or worried about family. Also, a Mental Status Evaluation, dated 15 February 2007, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with a clear-thinking process. The applicant was diagnosed with: Carries substance abuse diagnosis. The MSE was considered by the separation authority. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends current homelessness and the need for help. Eligibility for housing support program benefits for Veterans does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder with anxiety and depressed mood. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnosis of Adjustment Disorder with anxiety and depressed mood was made while the applicant was on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. Review of the medical record indicates that the applicant was diagnosed with Adjustment DO while on active duty. This condition is typically a mild, self-limiting condition which does not typically result in self medication with alcohol or illicit substances. Additionally, this diagnosis is not associated with being unable to tell the difference between right and wrong and act in accordance with the right. Accordingly, while Liberal Consideration was applied, there is no mitigation. However, the Agency BH Advisor does feel that the applicant's case merits consideration of clemency given the applicant's needs for VA medical/housing services and the fact applicant's misconduct occurred over 15 years ago and was relatively minor based on today's standards. (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 Adjustment Disorder with anxiety and depressed mood outweighed the basis for applicant's separation - marijuana abuse - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends experienced a high degree of stress and depression. The Board considered this contention and determined that the assertion alone did not outweigh the basis of separation, however, the Board voted to upgrade the applicant's characterization of service to General, Under Honorable Conditions based on applicant's length of service, homelessness, time since discharge and the applicant's Adjustment Disorder with anxiety and depressed mood diagnosis. (2) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (3) The applicant contends current homelessness and the need for help. The Board considered this contention and voted to upgrade the applicant's characterization of service to General, Under Honorable Conditions based on applicant's length of service, homelessness, time since discharge and the applicant's Adjustment Disorder with anxiety and depressed mood diagnosis. (4) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined that the characterization of service was inequitable based on the applicant's length of service, homelessness, time since discharge and the applicant's Adjustment Disorder with anxiety and depressed mood diagnosis. 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. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General Under Honorable Conditions because applicant's length of service, homelessness, time since discharge and the applicant's Adjustment Disorder with anxiety and depressed mood outweighed the applicant's misconduct of marijuana abuse. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code as the reason the applicant was discharged was both proper and equitable. (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 AR20200007203 1