1. Applicant's Name: a. Application Date: 20 April 2020 b. Date Received: 24 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 along with a narrative reason and separation program designator (SPD) code change. The applicant seeks relief contending, in effect, the discharge should be upgraded in the interest of justice considering the service-connected post-traumatic stress disorder (PTSD), previous honorable service, length of service, character letters, and achievements following discharge. The Board of Inquiry (BOI) deliberated for less than 8 minutes, this is indictive of an ill- considered process. b. Board Type and Decision: In a records review conducted on 7 April 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's post- service service-connected PTSD mitigating the applicant's Drug Abuse. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable. 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: Unacceptable Conduct / AR 600-8-24, Chapter 4-2B / JNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 18 December 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 January 2018 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 25 September 2017, the applicant's unit conducted a random urinalysis, in which the applicant tested positive for use of cocaine and a General Officer Memorandum of Reprimand (GOMOR) was filed in the applicant's AMHRR on 19 January 2018. (3) Board of Inquiry (BOI): On 30 April 2018, the BOI found the allegation the applicant committed an act of misconduct, moral, or professional dereliction, under AR 600-8- 24, paragraph 4-2b, wrongfully consuming cocaine on or about 23 September 2017, was substantiated and merited separation from the Army prior to the expiration of current term of service. The BOI also found the allegation the applicant's record contained derogatory information, under AR 600-8-24, paragraph 4-2c; to wit: a GOMOR filed in the applicant's AMHRR on 19 January 2018, for wrongfully consuming cocaine on or about 23 September 2017, was substantiated and merited separation from the Army prior to the expiration of current term of service. The BOI recommended the applicant be eliminated from the Army and that the applicant's service be characterized as general (under honorable conditions). The BOI commenced at 1000 hours and finished gathering/hearing evidence at 1110 hours. The BOI completed the findings and recommendations 1118 hours. A Legal Review found the BOI substantially complied with the requirements of AR 15-6 and AR 600-8-24 and was legally sufficient. (4) Legal Consultation Date: NIF (5) GOSA Recommendation Date / Characterization: 14 June 2018 / General (Under Honorable Conditions) (6) DASA Review Board Decision Date / Characterization: 3 December 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 5 May 2012 / Indefinite b. Age at Appointment / Education: 26 / Baccalaureate Degree c. Highest Grade Achieved / MOS / Total Service: O-3 / 35D, All Source Intelligence / 9 years, 7 months, 3 days d. Prior Service / Characterizations: RA, 30 August 2005 - 18 August 2008 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (4 December 2012 - 3 September 2013), Iraq (13 January 2007 - 29 March 2008) f. Awards and Decorations: ARCOM-2, AAM-3, AGCM, NDSM, GWOTSM, ACM-CS, ICM-CS, ASR, OSR, NATO MDL g. Performance Ratings: 24 July 2015 - 26 May 2016 / Highly Qualified 27 May 2016 - 31 July 2017 / Highly Qualified 1 August 2017 - 31 July 2018 / Qualified 1 August 2018 - 18 December 2018 / Highly Qualified h. Disciplinary Action(s) / Evidentiary Record: GOMOR, dated 22 November 2017, reflects the applicant was reprimanded for wrongful use of cocaine. On 25 September 2017, the applicant participated in a urinalysis, upon receipt of the results, it was discovered the applicant had wrongfully consumed cocaine. A Report of Mental Status Evaluation (MSE), dated 4 May 2018, reflects the applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong. The MSE reflects the applicant had no psychiatric diagnosis. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides a VA Rating Decision, dated 9 April 2020, which reflects, in part, the applicant has a service-connection for PTSD with symptoms of depression and anxiety granted with an evaluation of 50 percent effective 7 March 2020. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, ORB, OER, BOI Appeal Memorandum, Character letters-2, discharge orders, Summarized Record of Proceedings, Statement in Support of Claim, VA Rating Decision, college transcripts, personal statement 6. POST SERVICE ACCOMPLISHMENTS: The applicant has attended law school. 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), dated 25 September 2019, 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 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. A discharge of honorable, general, or under other than honorable conditions characterization of service may be granted. 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 "JNC" as the appropriate code to assign to officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. 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 along with a narrative reason and SPD code change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant requests the narrative reason and SPD code be changed. The applicant was separated under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct." Army Regulation 635-8, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1. There is no provision for any other reason to be entered under this regulation. The SPD code "JNC" is the appropriate code to assign to officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b. The applicant contends the discharge should be upgraded in the interest of justice considering the service-connected PTSD. The applicant's AMHRR contains no documentation of PTSD diagnosis. The record shows the applicant underwent a MSE on 4 May 2018, which reflects the applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong. The MSE reflects the applicant had no psychiatric diagnosis. The applicant provides a VA Rating Decision, dated 9 April 2020, which reflects, in part, the applicant has a service-connection for PTSD with symptoms of depression and anxiety granted with an evaluation of 50 percent effective 7 March 2020. The applicant contends the discharge should be upgraded based on previous honorable service and the length of service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant contends the BOI deliberated for less than 8 minutes and is indictive of an ill- considered process. A Legal Review found the BOI substantially complied with the requirements of AR 15-6 and AR 600-8-24 and was legally sufficient. The applicant states post-service achievements and character letters should be considered. 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. 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 50% service connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor determined that the medical condition does mitigate the basis for separation given the nexus between trauma and substance use. (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(s). b. Response to Contention(s): (1) The applicant contends the discharge should be upgraded in the interest of justice considering service-connected PTSD. The Board considered this contention and determined that the characterization of service was improper based on the applicant's PTSD mitigated the one-time cocaine use. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. (2) The applicant contends the discharge should be upgraded based on previous honorable service and the length of service. The Board considered this contention of 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 the BOI deliberated for less than 8 minutes and is indictive of an ill-considered process. The Board considered this contention and determined that a Legal Review found the BOI substantially complied with the requirements of AR 15-6 and AR 600-8- 24 and was legally sufficient. c. The Board determined that the characterization of service was inequitable based on the applicant's Post Traumatic Stress Disorder (PTSD) mitigated the substance abuse. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. The applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board determined the discharge is inequitable based on the applicant's Post Traumatic Stress Disorder (PTSD) mitigating 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. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as there is no RE-code listed on the applicant's discharge paperwork, due to being an Officer, no upgrade actions are required for this item. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: No Change d. Change Authority to: No Change 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 AR20200008896 1