1. Applicant's Name: a. Application Date: 27 July 2020 b. Date Received: 5 August 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, a narrative reason change, and a separation code change. The applicant seeks relief contending, in effect, suffering from undiagnosed post-traumatic stress disorder (PTSD). The applicant's discharge for substance abuse was an attempt at self- treatment for the applicant's mental health disorder. The applicant was suffering from severe depression, anxiety, sleep impairment, loss of motivation, and other issues which led the applicant to abuse alcohol, and eventually experiment with marijuana. Today marijuana is decriminalized or legal for medicinal use in over 80 percent of the U. S. The applicant was diagnosed with PTSD in 2018, service- related to a parachuting accident in the fall of 2016. After the discharge, the applicant struggled until the applicant received good support from the spouse and family. The applicant has been gainfully employed, completed Bachelor's and Master's Degrees in Business, have three children and a spouse, and is a leader in the applicant's current organization. The applicant further details the contentions in a self-authored statement submitted with the application. b. Board Type and Decision: In a records review conducted on 28 July 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Post Traumatic Stress Disorder 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-code of JKN. The Board determined the reentry code is proper and equitable and voted not to change it. Please see Section 10 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, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 18 December 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 November 2007 (2) Basis for Separation: The applicant was informed of the following reasons: On 6 August 2007, the applicant admitted a urine sample during a urinalysis which after chemical analysis tested positive for THC. On 24 October 2006, the applicant violated the terms of the applicant's restriction from a prior Article 15. On 1 September 2006, the applicant received an Article 15 for consuming alcoholic beverages while the applicant was under the age of 21. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 14 November 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 28 November 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 July 2004 / 6 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25M1P, Multimedia Illustrator / 3 years, 4 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / NIF f. Awards and Decorations: JSAM, AAM, GWOTEM, GWOTSM, KDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Field Grade Article 15, dated 1 September 2006, for violating the lawful general regulation by consuming alcoholic beverages while the applicant was under 21 years of age (18 August 2006). The punishment consisted of a reduction to E-3; forfeiture of $797 pay per month for two months (suspended); and extra duty and restriction for 45 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 24 October 2006, reflects the suspended portion of the punishment imposed on 15 September 2006, was vacated for Article 134, breaking restriction (11 October 2006). Electronic Copy of DD Form 2624, dated 10 August 2007, reflects the applicant tested positive for THC 17 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 6 August 2007. Field Grade Article 15, dated 6 September 2007, for wrongfully using marijuana (between 6 July and 7 August 2007). 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. Report of Medical History, dated 17 October 2007, the applicant reported unknowingly using illegal drugs. The examining medical physician noted in the comments section, but the comments are illegible. Three Developmental Counseling Forms, for various acts of misconduct: Failing to follow a lawful order, violating USFK command policy letter by consuming alcoholic beverages under the age of 21, and testing positive for illegal drugs. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Department of Veterans Affairs (VA) letter, dated 12 June 2019, reflecting the applicant was granted 50 percent service-connected disability for post- traumatic stress disorder (PTSD) and 10 percent for tinnitus; a combined total of 60 percent. (2) AMHRR Listed: Report of Mental Status Evaluation, dated 13 September 2007, reflects the applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. The applicant was diagnosed with cannabis use and alcohol dependence. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; VA rating decision; VA letter; third party character reference; Master of Business Administration degree; college transcripts; Clearwater Operator Certificate; and Fort Bend Herald newspaper article. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been gainfully employed, completed Bachelor's and Master's Degrees in Business, have three children and a Spouse, and is a leader in the applicants current organization. 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, a narrative reason change, and a separation code change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. 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 general (under 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." Army Regulation 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, Separation Program Designator (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 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 undiagnosed PTSD, severe depression, anxiety, and sleep impairment affected behavior and ultimately led to the discharge. The applicant provided medical documents reflecting the VA granted the applicant 50 percent service-connected disability for PTSD. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 13 September 2007, which indicates the applicant was mentally responsible. The applicant was diagnosed with cannabis use and alcohol dependence. The MSE was considered by the separation authority. The applicant contends the offense of using marijuana is a minor offense because marijuana has been decriminalized. The AMHRR indicates the applicant committed discrediting offenses. Army Regulation 635-200, 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's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being gainfully employed, completing Bachelor's and Master's Degrees in Business, having three children and a spouse, and being a leader in the applicant's current organization. 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. It recognizes the applicant's good conduct after leaving the Army. 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: Post Traumatic Stress Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant is service-connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma, substance use, and difficulty with authority, the PTSD mitigates the basis for separation. (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 Post Traumatic Stress Disorder fully outweighed the applicant's drug abuse basis of separation. b. Response to Contention(s): (1) The applicant contends undiagnosed PTSD, severe depression, anxiety, and sleep impairment affected behavior and ultimately led to the discharge. The Board liberally considered this contention and determined that the applicant's Post Traumatic Stress Disorder fully outweighed the applicant's drug abuse basis of separation. Therefore, a discharge upgrade is warranted. (2) The applicant contends the offense of using marijuana is a minor offense because marijuana has been decriminalized. 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 PTSD fully outweighing the applicant's drug abuse basis for separation. (3) The applicant contends being gainfully employed, completing bachelor's and master's degrees in business, having three children and a spouse, and being a leader in the applicant's current organization. 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 PTSD fully outweighing the applicant's drug abuse basis for separation. c. The Board determined the discharge is inequitable based on the applicant's Post Traumatic Stress Disorder 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-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 Post Traumatic Stress Disorder fully outweighed the applicant's drug abuse basis of separation. 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 AR20200008372 1