1. Applicant’s Name: a. Application Date: 23 July 2020 b. Date Received: 29 July 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 and a narrative reason change. The applicant seeks relief contending, in effect, the applicant had exemplary service prior to the misconduct which led to the discharge. The applicant was young and made poor decisions. The discharge is preventing the applicant from pursuing desired employment. b. Board Type and Decision: In a records review conducted on 09 August 2023, and by a 5-0 vote, 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: 16 February 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 January 2011 (2) Basis for Separation: The applicant was informed of the following reasons: On 28 December 2010, the applicant tested positive for marijuana; on 5 November 2010, the applicant threaten a noncommissioned officer and was disrespectful to a commissioned officer; on 10 December 2010, the applicant failed to abbey a lawful order from a commissioned officer and a noncommissioned officer; on 10 December 2010, the applicant assaulted a noncommissioned officer; on 8 September 2010, the applicant made a false official statement to a noncommissioned officer; from 7 December 2010 until 9 December 2010, the applicant was AWOL; and on 21 July 2010, 2 August 2010, 3 August 2010, 8 September 2010, and 5 October 2010, the applicant failed to report. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: The applicant waived the opportunity to consult with an attorney concerning the election of rights of the proposed administrative discharge. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 January 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 December 2007 / 6 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 8 months, 22 days d. Prior Service / Characterizations: RA, 11 April 2006 – 30 December 2007 / HD e. Overseas Service / Combat Service: SWA / Iraq (7 September 2007 – 22 October 2008) f. Awards and Decorations: AAM-3, AGCM, NDSM, GWOTSM, ICM0CS, ASR, OSR, CIB, EIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 21 January2011, reflects the applicant was absent from the unit from on or about 7 December 2010 until on or about 9 December 2010; was disrespectful towards a commissioned officer on or about 5 November 2010; on or about 10 December 2010, the applicant failed to obey a lawful command; on or about 5 November 2010, the applicant was disrespectful in language towards a noncommissioned officer; on or about 10 December 2010, the applicant was failed to obey a lawful order from a noncommissioned officer; on or about 10 December 2010, the applicant was disrespectful in language towards a noncommissioned officer; on or about 10 December 2010, the applicant assaulted a noncommissioned officer; and on or about 5 November 2010, the applicant wrongfully communicated a threat to a noncommissioned officer. The punishment consisted of reduction to private/E-1; forfeiture of $733 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 22 March 2-11; extra duty for 14 days; restriction for 14 days, suspended, to be automatically remitted if not vacated before 22 March 2011; and an oral reprimand. A Report of Mental Status Evaluation (MSE), dated 6 January 2010, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible for the behavior and could distinguish right from wrong. The applicant was diagnosed with substance abuse (currently in treatment). Personnel Action Forms reflects the applicant’s duty status changed from “Present for Duty” to “Absent Without Leave” effective 7 December 2010; and from “Absent Without Leave” to “Present for Duty” effective 9 December 2010. The applicant was counseled on multiple occasions for various forms of misconduct. i. Lost Time / Mode of Return: AWOL X 2 days (7 December 2010 – 8 December 2010) / Retuned, AWOL X 42 days (23 May 2007 – 4 July 2007) / NIF j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, personal statement, ERB, Certificate of Completion, EIB Certificate, AGCM Certificate, AAM Certificate-3, DA Form 638-3, 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), 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 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, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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 and a narrative reason 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 for the discharge be changed. The applicant’s DD Form 214 reflects 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 the 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 listed in tables 2-2 or 2-2 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, in effect, the applicant had exemplary service prior to the misconduct which led to the discharge. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends, in effect, the applicant was young and made poor decisions. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends, in effect, the discharge is preventing the applicant from pursuing desired employment. The Board does not grant relief to gain employment or enhance employment opportunities. Evidence in the AMHRR, someone in the discharge process erroneously entered on the applicant’s DD Form 214, block 25, “AR 635-200, PARA 14-12c (2).” The discharge packet confirms the separation authority approved the discharge because of Misconduct (Serious Offense). Soldiers discharged due to Misconduct (Serious Offense), will be processed under the provisions AR 635-200, PARA 14-12c. Evidence in the AMHRR, it appears someone in the discharge process erroneously entered on the applicant’s DD Form 214, block 26, Separation Code as “JKK.” The discharge packet confirms the separation authority approved the discharge because of Misconduct (Serious Offense). Soldiers discharged due to Misconduct (Serious Offense), will be processed under the provisions AR 635-200, PARA 14-12c, and will be assigned a Separation Code of “JKQ,” per Army Regulation 635-5-1. Evidence in the AMHRR, someone in the discharge process erroneously entered on the applicant’s DD Form 214, block 28, Narrative Reason for Separation as “Misconduct (Drug Abuse).” The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c. Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason for Separation as Misconduct (Serious Offense). 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: PTSD (note- due to symptom overlap, Anxiety DO with anxiety, Depression and Adjustment DO with anxiety are subsumed under the diagnosis of PTSD). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found a VA service connection for PTSD establishes the condition existed or occurred during military service. (3) Does the condition or experience excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a BH condition, PTSD, which mitigates some of the misconduct. As there is a relationship between PTSD and avoidant behavior, there is a nexus between his diagnosis of PTSD and his multiple FTRs and period of AWOL in Dec 2010. As there is an association between PTSD and difficulty with authority figures, there is a nexus between his diagnosis of PTSD and his disrespectfulness towards a senior NCO. PTSD does not mitigate assaulting an NCO, lying to an NCO, or threatening an NCO as this condition (PTSD) does not affect one’s ability to distinguish right from wrong and act in accordance with the right. While PTSD may be associated with the use of illicit drugs to self-medicate, the Board’s Medical Advisor does not feel the applicant’s use of marijuana was an attempt to self-medicate PTSD-associated symptoms given that the applicant had a long history of substance use before being deployed and developing PTSD. Therefore, the applicant’s wrongful use of marijuana was another manifestation of his underlying, long-term substance dependence and not due to his diagnosis of PTSD. The Board determined that the totality of the applicant’s misconduct outweighs the partial mitigation offered under liberal consideration. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the board unanimously determined that the applicant’s PTSD diagnoses did not excuse or mitigate the totality of the misconduct (disrespect towards an NCO, lying to an NCO, assaulting, and threatening an NCO). b. Response to Contention(s): (1) The applicant requests an upgrade to honorable and a narrative reason change. The Board carefully considered the: applicant's request, supporting documents, evidentiary record, medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board unanimously (by a vote of 5-0) concurred with the conclusion of the medical advisor that the applicant's discharge was proper and equitable in that the diagnosed behavioral health conditions only partially mitigate the misconduct (drugs/avoidance/AWOL). The other misconduct (threatening/assaulting an NCO, lying) are not mitigated and Kurta 4 was not accepted. (2) The applicant contends the applicant had exemplary service prior to the misconduct which led to the discharge. The Board considered the applicant’s four years of service, including a combat tour in Iraq and the numerous awards, but determined that these factors did not outweigh the totality of misconduct outlined in the file. (3) The applicant contends he was young and made poor decisions. The Board considered this contention and determined that youthful indiscretion does not excuse the totality of the misconduct. In addition, the applicant’s AMHRR shows the applicant met entrance qualification standards, to include age. (4) The applicant contends, in effect, the discharge is preventing him from pursuing desired employment. The board considered this contention, but does not grant relief to gain employment or enhance employment opportunities. c. The Board determined that the discharge is, at this time, proper and equitable considering the evidentiary record. However, the applicant may request a personal appearance hearing to address/present additional issues/information before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support contentions that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board carefully considered the: applicant's request, supporting documents, evidentiary record, medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board unanimously (by a vote of 5-0) concurred with the conclusion of the medical advisor that the applicant's discharge was proper and equitable in that the diagnosed behavioral health conditions only partially mitigate the misconduct (drugs/avoidance/AWOL). The other misconduct (threatening/assaulting an NCO, lying) are not mitigated and Kurta 4 was not accepted. (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 the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. Change RE Code to: No Change e. 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 AR20200008940 1