1. Applicant's Name: a. Application Date: 12 May 2020 b. Date Received: 5 June 2020 c. Counsel: 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 or general (under honorable conditions), a narrative reason change, a separation code change, and a reentry code change. The applicant seeks relief contending, in effect, the discharge is inequitable because PTSD was a major mitigating factor in the misconduct. While deployed in Afghanistan, the applicant served as a machine gun operator in an area where the Soldiers faced enemy combat daily and endured harsh living conditions. The applicant's job was to suppress enemy fire during combat, while preserving enough ammunition to carry out each mission. Among the many atrocities observed, the applicant witnessed four of brothers gruesomely killed during combat. The applicant's PTSD outweighed the misconduct as it stemmed from the symptoms of PTSD. Following the deployment, the applicant experienced trouble sleeping, had nightmares, and was detached and numb to the surroundings. The applicant found the pressures of adjusting to life post-deployment difficult, while suffering from PTSD, led to the substance abuse. The applicant began self-medicating, which led to testing positive on a urinalysis and the subsequent discharge. The applicant is only able to receive treatment by the VA for the diagnosed service-connected PTSD. The discharge was also inequitable because the service met the standards for a General (Under Honorable Conditions) discharge, while the exceptional combat service and accolades outweighed the discharge. Many of the platoon leaders and members testified to the applicant's excellent service while deployed. The applicant's counsel further details the contentions in an allied legal brief provided with the application. b. Board Type and Decision: In a records review conducted on 24 March 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD mitigated the applicant's misconduct - drug abuse. 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. 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: 6 December 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 August 2013 (2) Basis for Separation: The applicant was informed of the following reasons: Between 14 March and 15 April 2013, the applicant wrongfully used marijuana, a controlled substance. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 28 August 2013 (5) Administrative Separation Board: On 28 August 2013, 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. On 2 October 2013, the applicant's conditional waiver was denied. On 17 October 2013, the applicant was notified to appear before an administrative separation board and advised of rights. On 6 November 2013, the administrative separation board convened, and the applicant appeared with counsel. The Board determined the allegation of the applicant wrongfully using marijuana between 14 March and 15 April 2013, was supported by a preponderance of the evidence. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: On 26 November 2013, the separation authority, the GCMCA, approved the findings and recommendations of the administrative separation board. / Under Other Than Honorable Conditions. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 October 2012 / 5 years b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 Years, 2 months 29 days d. Prior Service / Characterizations: RA, 8 September 2010 - 30 September 2012 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (24 April 2012 - 10 January 2013) f. Awards and Decorations: ACM-CS, ARCOM, NDSM, GWOTSM, ASR, OSR, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Developmental Counseling Form for testing positive for THC during a urinalysis. Electronic Copy of DD Form 2624, dated 22 April 2013, reflects the applicant tested positive for THC 50 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 15 April 2013. FG Article 15 dated 10 May 2013, for wrongfully using marijuana (between 14 March and 15 April 2013). The punishment consisted of a reduction to E-1; forfeiture of $758 pay per month for two months; and extra duty and restriction for 45 days. CID report of Investigation - Initial Final (C) - 0629-2013-CID016-40590-5Y2B0, dated 5 June 2013, reflects an investigation established probable to believe the applicant committed the offense of Failure to Obey Order or Regulation (I Corps Policy Memo 21), when applicant was found in possession of four Spice packets in applicant's barracks room. Report of Proceedings by Investigating Officer/Board of Officers with summarized transcript of the board proceedings, dated 6 November 2013, reflects the Board of Officers found: The applicant wrongfully using marijuana between 14 March and 15 April 2013, was supported by a preponderance of evidence, and the findings warranted separation with an under other than honorable conditions characterization of service. Report of Mental Status Evaluation (MSE), dated 3 May 2013, reflects the applicant was 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 met medical retention requirements. The applicant had been screened for PTSD and TBI with negative results. The MSE provided no diagnosis. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Veterans Administration Disability Rating Decision, dated 7 January 2019, reflects the applicant was granted service-connection disability for PTSD. (2) AMHRR Listed: Reports of Medical Examination and Medical Assessment, dated 26 June 2013, the examining medical physician noted in both the comments section: an adjustment disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with listed exhibits. 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 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 or general (under honorable conditions), a narrative reason change, a separation code change, and a reentry 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 an under other than 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 requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned a RE code of "4." A RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends the discharge is inequitable because PTSD was a major mitigating factor in the misconduct and the PTSD outweighed the misconduct as it stemmed from the symptoms of PTSD. Veterans Administration Disability rating decision, dated 7 January 2019, reflects the applicant was granted service-connection disability for PTSD because the records confirmed diagnosis of the PTSD which had been linked to the military service and the service-connection for PTSD was granted for treatment purpose only. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 3 May 2013, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The applicant contends the discharge was also inequitable because the service met the standards with exceptional combat service and accolades which outweighed the discharge and many of the platoon leaders and members have testified to the applicant's excellent service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. 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: the applicant held an in- service diagnosis of adjustment disorder. PTSD. (2) Did the condition exist, or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder and 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 and substance use, the medical condition does mitigate the basis for separation. (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 PTSD outweighed the drug abuse basis for separation for the aforementioned reason. b. Response to Contention(s): (1) The applicant contends the narrative reason and SPD code for the discharge needs to be changed. The Board considered this contention during proceedings and determined that relief was warranted based on the applicant's PTSD outweighing the applicant's drug abuse basis for separation. (2) The applicant requests a reentry eligibility (RE) code change. The Board considered this contention and voted to upgrade the RE-code to a RE-3, which is a waivable code. A RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate (3) The applicant contends the discharge is inequitable because PTSD was a major mitigating factor in the misconduct and the PTSD outweighed the misconduct. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the applicant is service connected for combat related PTSD mitigating the applicant's drug abuse. (4) The applicant contends the discharge was also inequitable because the service met the standards with exceptional combat service and accolades, which outweighed the discharge. 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 outweighing the applicant's drug abuse basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD mitigated the applicant's misconduct - drug abuse. 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 PTSD mitigated the applicant's 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 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 AR20200008412 1