1. Applicant's Name: a. Application Date: 20 May 2020 b. Date Received: 26 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 General (Under Honorable Conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, since the discharge, the applicant graduated from a culinary school and has been gainfully employed as a chef for over nine years. The applicant successfully opened and operates two restaurants, "The Heritage Table" in Frisco, Texas and "Henderson's Kitchen and Tap" in McKinney, Texas. The applicant has not been in any trouble with the law, nor any drug abuse. The post good conduct/behavior outweighs the one mistake which led to the discharge. b. Board Type and Decision: In a records review conducted on 7 April 2023, and by a 5-0 vote, the Board determined that the discharge was inequitable based on the applicant's post service diagnosis of PTSD mitigating the applicant's drug use. Therefore, the Board voted to grant relief in the form of an upgrade to 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, and the reentry code to RE-3. 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: 27 June 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 June 2011 (2) Basis for Separation: The applicant was informed of the following reasons: Between 25 and 28 February 2011, the applicant wrongfully used cocaine. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 14 June 2011, the applicant waived legal counsel. (5) Administrative Separation Board: On 14 June 2011, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 20 June 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 January 2009 / 3 years, 8 weeks b. Age at Enlistment / Education / GT Score: 26 / two-year college / 102 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, Infantryman / 10 years, 3 months, 12 days d. Prior Service / Characterizations: RA, 18 May 2000 - 30 November 2003 / HD USARCG, 1 December 2003 - 20 January 2009 / HD e. Overseas Service / Combat Service: SWA / Kuwait (17 December 2001 - 17 May 2002); Iraq (17 April 2003 - 4 September 2003); Afghanistan (8 March 2010 - 11 February 2011) f. Awards and Decorations: ACM-CS, ICM-2CS, ARCOM, NATOMDL, NDSM, AFEM, GWOTSM, ASR, OSR-3, CIB g. Performance Ratings: 8 November 2007 - 7 November 2008 / Fully Capable 8 November 2008 - 2 October 2009 / Fully Capable 3 October 2009 - 2 October 2010 / Fully Capable 3 October 2010 - 1 April 2011, RFC / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Service School Academic Evaluation Report, dated 11 June 2009, reflects the applicant failed to achieve course standards for the Warrior Leader Course 10-09 and was released from the course for disciplinary reason. Service School Academic Evaluation Report, dated 28 October 2009, reflects the applicant exceeded the course standards for the Warrior Leader Course 01-10. Electronic Copy of DD Form 2624, dated 14 March 2011, reflects the applicant tested positive for COC 128 (Cocaine), during an Inspection Unit (IU) urinalysis testing, conducted on 28 February 2011. FG Article 15 with allied documents, dated 1 April 2011, for wrongfully using cocaine (between 25 and 28 February 2011). The punishment consisted of a reduction to E-4; forfeiture of $1,162 pay; extra duty and restriction for 45 days; and a reprimand. Nine Developmental Counseling Forms for being involved in a disorderly conduct, being arrested, unprofessional conduct, positive urinalysis, roll-over incident, and monthly performances. Report of Behavioral Health Evaluation (BHE), dated 6 May 2011, reflects the applicant could understand and participate in the administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and TBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The applicant was psychiatrically cleared for any administrative actions deemed appropriate by command. The BHE was considered by the separation authority. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: BHE as described in previous paragraph 4h. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: The applicant graduated from a culinary school, has been gainfully employed as a chef for over nine years, and has successfully opened and operates two restaurants in Texas. 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: 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) and the issues submitted with the application were carefully reviewed. The applicant contends having graduated from a culinary school, has been employed as a chef for over nine years, and has opened and successfully operates two restaurants in Texas. 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 the event which led to the discharge from the Army was an isolated incident, and the single incident should not outweigh the post conduct. Army Regulation 635- 200, paragraph 3-5, 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 PTSD and OBH conditions are related to the request for an upgrade. The applicant's AMHRR contains no documentation of PTSD or any OBH diagnoses. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The AMHRR shows the applicant underwent a behavioral health evaluation (BHE) on 6 May 2011, which indicates the applicant was mentally responsible and recognized right from wrong. The BHE does not indicate any diagnosis. The BHE was considered by the separation authority. The ARBA sent a letter to the applicant at the address in the application on 31 August 2021 requesting documentation to support a PTSD diagnosis or medical issues but received no response from the applicant. 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 diagnosis: PTSD. (2) Did the condition exist, or experience occur during military service? Yes. The applicant is 70% service connected for combat related PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined found that the nexus between trauma and substance use, the basis for separation is mitigated. (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 combat related PTSD outweighed the applicant's drugs abuse for the aforementioned reason. b. Response to Contention(s): (1) The applicant contends PTSD and OBH conditions are related to the request for an upgrade. 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 combat related PTSD outweighing the applicant's drug abuse basis for separation. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident, and the single incident should not outweigh the post conduct. The Board considered this contention of overall honorable service during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD outweighed the applicant's drug abuse basis for separation. (3) The applicant contends having graduated from a culinary school, has been employed as a chef for over nine years, and has opened and successfully operates two restaurants in Texas. The Board considered this contention of post-service accomplishments during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD outweighed the applicant's drug abuse basis for separation. c. The Board determined that the discharge was inequitable based on the applicant's post service diagnosis of PTSD mitigating the applicant's drug use. Therefore, the Board voted to grant relief in the form of an upgrade to 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, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's combat related PTSD mitigated the applicant's wrongfully using cocaine. 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 Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 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 AR20200007622 1