1. Applicant's Name: a. Application Date: 31 January 2020 b. Date Received: 6 February 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general, under honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, he was discharged for reasons relating to an undiagnosed mental health condition. In a personal appearance conducted on 2 August 2021, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed 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. 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions b. Date of Discharge: 22 October 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 September 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was found in possession of drug paraphernalia on a military installation. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 5 October 2009 (5) Administrative Separation Board: The applicant conditionally waived an Administrative Separation Board contingent upon receiving a characterization of service no less favorable than a General (Under Honorable Conditions) discharge. (6) Separation Decision Date / Characterization: 7 October 2009 / General, Under Honorable Conditions discharge 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 August 2007 / 3 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 122 c. Highest Grade Achieved / MOS / Total Service: E-5 / 13B, Cannon Crewmember / 14 years d. Prior Service / Characterizations: RA, 18 August 1995 - 14 July 2009 / HD e. Overseas Service / Combat Service: SWA / Iraq (14 January 2004 - 1 February 2005), (1 December 2005 - 31 October 2006), (30 January 2008 - 25 February 2009) f. Awards and Decorations: ARCOM-3, AAM-7, AGCM-4, NDSM-2, GWOTSM, GWOTEM, ICM-CS-2, NCOPDR-2, ASR, OSR-3, CAB, Air Assault Badge, Driver and Mechanic Badge-Mechanic g. Performance Ratings: August 2002 - December 2002 / Fully Capable January 2003 - December 2003 / Fully Capable January 2004 - December 2004 / Fully Capable January 2005 - May 2005 / Fully Capable June 2005 - March 2006 / Fully Capable 1 April 2006 - 28 February 2007 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: A Military Police Report, dated 15 July 2009, reflects the applicant was apprehended and transported to the Fort Carson Police station after a search of his vehicle revealed a pipe in plain view on the dash board. On 5 August 2009, the applicant was referred to the ASAP for comprehensive assessment to determine whether or not the applicant met the criteria for enrollment. FG, Article 15, dated 3 September 2009, reflects the applicant violated a lawful general order on or about 15 July 2009, by wrongfully possessing drug paraphernalia. The punishment consisted of reduction to specialist/E-4 and extra duty for 45 days. A Mental Status Evaluation, dated 4 September 2009, reflects the applicant had the mental capacity to understand and participate in proceedings; was mentally responsible; and met retention requirements. The applicant was cleared by behavioral health for administrative separation. On 14 September 2009, the applicant was counseled for failing to report back to work after chow on 12 September 2009. On 2 October 2009, the applicant was counseled for failing to report to Staff Duty. On 5 October 2009, the applicant was counseled for failing to report for extra duty. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provides a Rating Decision from the Department of Veteran Affairs, dated 15 August 2018, which reflects the applicant had an evaluation of post-traumatic stress disorder with alcohol use disorder in remission, which was increased from 30-percent disabling to 50 percent effective 30 January 2018. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, A Rating Decision from the Department of Veteran Affairs, dated 15 August 2018, which reflects the applicant had an evaluation of post- traumatic stress disorder with alcohol use disorder in remission, which was increased from 30- percent disabling to 50 percent effective 30 January 2018. 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. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's AMHRR of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant contends he was discharged for reasons relating to an undiagnosed mental health condition and he provides a VA Rating Decision reflecting a PTSD diagnosis. A careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record reflects that on 4 September 2009, the applicant underwent a mental status evaluation which indicates the applicant had the mental capacity to understand and participate in proceedings; was mentally responsible; and met retention requirements. The applicant was cleared by behavioral health for any administrative action deemed appropriate by command for separation from the Army. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and character witnesses provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): Mrs. S.O. (witness) 10. 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 VA has diagnosed the applicant with PTSD and TBI related to military service. Both of these conditions are potentially mitigating under the Liberal Consideration guidance. (2) Did the condition exist or experience occur during military service? Yes. Applicant's VA diagnosis of PTSD and TBI are both service connected which indicates that they developed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. As both PTSD and TBI are associated with use of illicit substances to self-medicate symptoms, there is a nexus between these two conditions and the applicant's possession of drug paraphernalia. (4) Does the condition or experience outweigh the discharge? Yes. Applicant's VA diagnosis of PTSD and TBI both outweigh the applicant's misconduct and warrant a discharge upgrade. b. The applicant contends he was discharged for reasons relating to an undiagnosed mental health condition and he provides a VA Rating Decision reflecting a PTSD diagnosis. The Board determined that this contention was valid and granted relief. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and post-service accomplishments. 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 drug charges. 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: 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 AR20200009778 1