1. Applicant's Name: a. Application Date: 24 March 2020 b. Date Received: 7 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 General (Under Honorable Conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, upon returning from Iraq deployment and having served honorably and exceeding the standards for three years with no disciplinary action, the applicant was involved in a motorcycle accident which changed life forever. A person crossing the center lane caused the applicant to destroy the dominant hand. A week after the second surgery, the applicant decided on having a few drinks with friends, which was not okay to do. The applicant learned of being deeply depressed and could not stop thinking about the accident and how life would never be the same again. The amount of pain the applicant experienced was awful and had earlier in the day taken the hydrocodone prescription causing the applicant to blackout and during the time, the applicant mistakenly took the drug which tested positive. The applicant accepts full responsibility for the irrationality of the actions and understands having made a huge mistake. The incident only furthered the depression and caused another aspect of the life to crumble. The applicant served the subsequent field grade Article 15 punishment with no complaints. The applicant wore an E-2 demoted rank for six months, as the applicant had extended the enlistment contract to be medically separated. In the right state of mind, the applicant would have never knowingly done anything to jeopardize the career or the unit's readiness. The applicant has since worked in industrial construction and in leathercraft. Having realized a passion for motorcycles, the applicant decided to attend UTI (Universal Technical Institute) to learn to build motorcycles and become a Harley-Davidson mechanic soon. The one mistake made during a very difficult time in life should not impact the rest of the life. The applicant desires to continue moving forward in life for the better and grow from the mistakes made. b. Board Type and Decision: In a records review conducted on 22 March 2023, and by a 5-0 vote, the Board determined the discharge is inequitable and too harsh based on the severity of the applicant's injuries warranting MEB, one-time drug use, and ASAP completion. 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: 28 August 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 July 2019 (2) Basis for Separation: The applicant was informed of the following reasons: On 26 November 2018, the applicant tested positive for amphetamines on a unit urinalysis. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 16 July 2019 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 August 2019 / General (Under Honorable Conditions) (The GCMCA considered and determined the applicant's medical condition was not a direct or contributing cause of the conduct leading to the separation and there are no other circumstances warranting disability processing.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 January 2016 / 3 years, 16 weeks (On 29 March 2019, the enlistment was medically extended an additional 6 months from 26 April to 25 October 2019.) b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, 2B Infantryman / 3 years, 7 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (4 September 2017 - 7 June 2018) f. Awards and Decorations: AAM, AAMCD, AGCM, NDSM, GWOTSM, ASR, OSR, IRCM- CS g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Developmental Counseling Forms for testing positive during a urinalysis, being flagged, and pending administrative separation. Electronic Copy of DD Form 2624, dated 13 December 2018, reflects the applicant tested positive for DAMP 826 (D-Amphetamines), during an Inspection Unit (IU) urinalysis testing, conducted on 26 November 2018. FG Article 15, dated 26 March 2019, for wrongfully using amphetamines (between 21 and 26 November 2018). The punishment consisted of a reduction to E-2; forfeiture of $942 pay per month for two months (suspended); extra duty and restriction for 45 days, and an oral reprimand. Statement of Medical Examination and Duty, dated 27 March 2019, reflects on 16 September 2018, the applicant was riding a motorcycle on entrance road near Fort Polk, when the applicant put the left hand out to get the attention of an oncoming truck in the applicant's lane, which hit the hand and broke the mirror of the truck. The applicant was injured with a "fracture of [the] left 2nd metacarpal; fracture of left 4th metacarpal; and displaced ulna," and the injury was considered to have incurred in line of duty. Report of Mental Status Evaluation (MSE), dated 16 June 2019, reflects the applicant was psychiatrically cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and applicant does not have a behavioral health condition warranting disposition through medical channels. The applicant had been screened for PTSD and mTBI with negative results. The MSE provided no diagnosis but indicated an MEB was underway for left elbow/wrist/hand injury. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, dated 12 February 2019, the applicant noted behavioral health issues and the examining medical physician noted in the comments section: There was no evaluation in the past and sleep problems reported with limited treatment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and three third-party letters. 6. POST SERVICE ACCOMPLISHMENTS: The applicant obtained employment in industrial construction and in leathercraft. 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. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends having served honorably and exceeded the standards for three years, including a combat tour, and had no disciplinary action. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends having learned of being depressed caused by a motorcycle accident which changed the life forever and after mistakenly taking a drug which led to the separation furthered the depression. The applicant's AMHRR contains no documentation of any behavioral health diagnosis. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any behavioral health medical condition. The applicant contends obtaining employment in industrial construction and in leathercraft. 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 third-party statements provided with the application speak highly of the applicant's character and performance. 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. 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 diagnosis: Adjustment Disorder. Additionally, the applicant asserts depression, 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. Applicant was diagnosed in-service with the Adjustment Disorder and asserts Depression. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined while the Adjustment Disorder and asserted Depression do not mitigate drug use, the severity of the applicant's injury warrants consideration as to the weight of the MEB-warranting injury and one-time drug use. (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 outweighed the basis for applicant's separation - drug use - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends having served honorably and exceeded the standards for three years, including a combat tour, and had no disciplinary action. The Board considered this contention of the totality of the applicant's record during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the severity of the applicant's injuries warranting MEB and ASAP completion outweighing the applicant's one-time drug use. (2) The applicant contends having learned of being depressed caused by a motorcycle accident which changed the life forever and after mistakenly taking a drug which led to the separation furthered the depression. The Board considered this contention and the applicant's assertion of Depression, however the Board determined that there is insufficient evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board did not address the contention due to an upgrade being granted based on the severity of the applicant's injuries warranting MEB and ASAP completion outweighing the applicant's one- time drug use. (3) The applicant contends obtaining employment in industrial construction and in leathercraft. The Board considered this contention of the applicant's post-service accomplishments during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the severity of the applicant's injuries warranting MEB and ASAP completion outweighing the applicant's one-time drug use. c. The Board determined the discharge is inequitable and too harsh based on the severity of the applicant's injuries warranting MEB, one-time drug use, and ASAP completion. 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 severity of the applicant's injuries warranting MEB and ASAP completion outweighing the applicant's one-time drug use. 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 and the severity of the applicant's injuries is 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 AR20200007594 1