1. Applicant's Name: a. Application Date: 14 March 2020 b. Date Received: 17 March 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 conditions. The applicant seeks relief contending, in effect, the discharge occurred during a medical board case because the applicant fell and injured his back. The applicant had to have back surgery in July of 2015 and was never the same happy, kind and cheerful guy. The applicant got into trouble because of a failed drug test due to the prescribed medications he was taking. The applicant thinks it was a big misunderstanding but because of the black and white process they had to do what they did. The applicant's wife divorced him due to his back surgery and his penile condition (ED) and the applicant was severely depressed. The applicant states he was a great Soldier and did everything they asked and more. The applicant saved the Army over $1.6 million dollars in one year. Board Type and Decision: In a records review conducted on 5 April 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Traumatic Brain Injury outweighing the applicant's wrongful drug use. 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, and the reentry code to RE-3. b. the Board denied the request upon finding the separation was both proper and equitable. 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: 14 October 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 August 2016 (2) Basis for Separation: The applicant was informed of the following reasons: between on or about 12 December 2015 and 12 January 2016 and on or about 19 January 2016 and 19 February 2016, the applicant wrongfully used marijuana, a schedule I controlled substance. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 30 August 2016 / The applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 September 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 August 2012 / 4 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88N10, Transportation Management Coordinator / 5 years, 4 months, 1 week, 5 days d. Prior Service / Characterizations: ARNG, 18 September 2009 - 3 December 2010 / UNC (Break in Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM-2, ASUA, GCM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Developmental Counseling Forms, for notification of positive urinalysis and notification of initiation of report to suspend favorable personnel actions (flag). FG Article 15, dated 6 June 2016, for wrongfully using marijuana between on or about 12 December 2015 and 12 January 2016 and between on or about 19 January 2016 and 19 February 2016. The punishment consisted of a reduction to E-3; forfeiture of $1041.00 pay per month for two months (suspended) to be automatically remitted if not vacated on or before 14 December 2016; extra duty for 45 days and restriction to the limits of company area, dining/medical facility, and place of worship; oral reprimand. Report of Mental Status Evaluation, dated 29 July 2016, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. However, the Mental Status Evaluation dated 29 July 2016, indicated the applicant was diagnosed and had an occupational problem. Axis I. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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) 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 Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant contends the prescribed medication he was taking because of the back surgery he had caused him to fail a drug test. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends family issues affected his behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends he suffered from depression after his wife divorced him. The applicant's AMHRR contains no documentation of a depression diagnosis. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from a medical condition. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 29 July 2016, which indicated the applicant was mentally responsible and could recognize right from wrong. However, the Mental Status Evaluation dated 29 July 2016, indicated the applicant was diagnosed and had an occupational problem. Axis I. The ARBA sent a letter to the applicant at the address in the application on 21 June 2021 requesting documentation to support a medical diagnosis but received no response from the applicant. The applicant contends good service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 132.28. 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: Mild Traumatic Brain Injury. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found mild TBI was diagnosed while applicant was in the military. VA service connection for TBI establishes it occurred during active 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 that the applicant has a mitigating BH condition, mild TBI. As there is an association between TBI and use of drugs to self-medicate emotional symptoms, there is a nexus between his TBI and his wrongful use of THC. (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 mild TBI outweighed the applicant's wrongful use of illegal drugs. b. Response to Contention(s): (1) The applicant contends the prescribed medication he was taking because of the back surgery he had caused him to fail a drug test. The Board considered this contention during proceedings, but ultimately did not address the specifics of this contention due to an upgrade being granted based on the applicant's TBI fully outweighing the applicant's drug abuse basis for separation. (2) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention during proceedings, but ultimately did not address the specifics of this contention due to an upgrade being granted based on the applicant's TBI fully outweighing the applicant's drug abuse basis for separation. (3) The applicant contends good service. The Board considered this contention during proceedings, but ultimately did not address the specifics of this contention due to an upgrade being granted based on the applicant's TBI fully outweighing the applicant's drug abuse basis for separation. c. The Board determined the discharge is inequitable based on the applicant's Traumatic Brain Injury outweighing the applicant's wrongful drug use. 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, 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 mTBI mitigated the applicant's misconduct of marijuana abuse. 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. 11. 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: 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 AR20200007716 1