1. Applicant's Name: a. Application Date: 2 November 2020 b. Date Received: 9 November 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, along with upgrading their separation and reentry codes. b. The applicant seeks relief contending, in effect, they were going through a hard time with their posttraumatic stress disorder (PTSD) and Traumatic Brain Injury (TBI), after they returned from deployment. They had high anxiety and started using marijuana to self-medicate; they went to combat and returned to a divorce and confusion. It was hard to get anyone in their chain of command to understand the pressure they were going through. The applicant knew they needed to talk with someone to help them get their mind together. c. Board Type and Decision: In a records review conducted on 1 December 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Anxiety Disorder and MDD mitigating the basis of separation - 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. Based on the applicant's medical diagnosis the Board determined the reentry code was proper and equitable and voted not to change it. 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: 7 January 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: wrongful use of marijuana (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 August 2012 / 4 years b. Age at Enlistment / Education / GT Score: 22 / High School Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91D10 Power - Generation Equipment / 5 years, 5 months and 3 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: 20 months and 16 days * SWA / Iraq (1 November 2009 - 1 November 2010) * SWA / Afghanistan (7 February - 22 October 2012) f. Awards and Decorations: ACM-CS, ARCOM-2, AAM, AGCM, NDSM, ASR, OSR-2, NATOMDL, DMB-MECH, DMB-DMW g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 6 June 2008, the applicant enlisted in the United States Army Reserve's Delayed Entry Program. On 5 August 2008, they enlisted in the Regular Army for 4 years as an PV2. On 16 December 2011, they extended their contract for 8 months. On 30 August 2012, the applicant reenlisted for a period of 4 years. (2) The Enlisted Record Brief provides on 1 August 2010, the applicant promoted to SPC. They were deployed for nearly 22 months in Iraq and Afghanistan. The applicant has been awarded two Army Commendation Medals, Army Achievement Medal, Army Good Conduct Medal, and a NATO Medal. On 4 June 2013, a Suspend Favorable Personnel Actions (FLAG) was flagged on for adverse action (AA). On 14 August 2013, the applicant was demoted to PFC. On 12 and 19 September 2013, for field-initiated involuntary separation (BA) and for drug abuse adverse action (UA). (3) The AMHRR is void of the entire separation proceedings; however, on 26 December 2013, the applicant was issued separation orders with an effective date of 7 January 2014. (4) A DD Form 214 (Certificate of Release or Discharge from Active Duty) provides: * Authority: Army Regulation 635-200, Chapter 14-12c (2) * Narrative Reason: Misconduct (Drug Abuse) * SPD Code: JKK * Reentry Code: RE-4 * Service Characterization: General (Under Honorable Conditions) * Total NET Active Service Period: 5 years, 7 months, and 3 days * Remarks: The applicant has completed their first full term of service. * Lost Time: None * Signature: Not available to sign i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: On the DD Form 293 (Application for the Review of Discharge), the applicant marked PTSD/TBI/OBH; however, the record is void of the medical documentation. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with this 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) 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. (2) 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. (3) An 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. (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. 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. 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. (5) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 14-12c (2), 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) 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. a. The applicant requests an upgrade to Honorable, in addition to a narrative reason change, and upgrading their separation and reenlistment codes. A review of the records provides there was administrative irregularity in the proper retention of official military records, specifically, the referral to ASAP [a two-part mandatory clinical assessment, required within 4 days of the first positive urinalysis], a charge sheet for their misconduct (drug abuse), investigation reports, and separation package with command endorsements. b. The available evidence provides the applicant completed their first reenlisted and promoted to SPC. They were awarded two Army Commendation Medals, an Army Achievement Medal, an Army Good Conduct Medal, and a NATO Medal. In June 2013, the applicant was flagged, (A Suspend Favorable Personnel Actions (FLAG)) for adverse action. In August 2013, the applicant was demoted to PFC; In September 2013, they were flagged for both involuntary separation and drug abuse. (1) Notwithstanding the administrative irregularity in the proper retention of records, the applicant was issued separation orders and a properly constituted DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c (2), for Misconduct (Drug Abuse), with a characterization of service of General (Under Honorable Conditions, rather than an under other than honorable conditions which is considered appropriate. (2) Due to the lack of evidence in the AMHRR, the specific facts and circumstances surrounding the drug abuse that resulted in discharge are unknown. The applicant completed 5 years, 7 months, and 3 days of total NET Active Service, with approximately 21 months deployed to Iraq and Afghanistan in support of OIF and OEF. They completed 1 year, 4 months, and 8 days of their 4-year contractual obligation. c. AR 600-85 provides a mental examination is required within 4 days of ASAP's notification to the command for the first wrongful use, however, the record is void of documents indicating whether the applicant underwent the required ASAP screening. Medical documentation was requested from the applicant in support of their PTSD and TBI claims; however, no additional documents were received. d. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. e. Published DoD guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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: Major Depressive Disorder (MDD); Adjustment DO; Anxiety DO (70% SC). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found MDD was diagnosed on active duty. VA service connection for Anxiety DO establishes it began while in active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has two mitigating BH conditions, Anxiety Disorder (note-diagnoses of Adjustment DO are subsumed under Anxiety DO diagnoses) and MDD. As there is an association between Anxiety DO, MDD and use of illicit drugs and alcohol to self medicate symptoms, there is a nexus between his diagnosis of Anxiety DO, MDD and his wrongful use of THC. (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 Anxiety Disorder and MDD outweighed the drug abuse basis for separation for the aforementioned reasons. b. Response to Contention(s): The applicant contends, they were going through a hard time with their posttraumatic stress disorder (PTSD) and Traumatic Brain Injury (TBI), after they returned from deployment. They had high anxiety and started using marijuana to self-medicate; they went to combat and returned to a divorce and confusion. It was hard to get anyone in their chain of command to understand the pressure they were going through. The applicant knew they needed to talk with someone to help them get their mind together. The Board considered this contention and determined that it was valid and voted to grant relief in the form of an upgrade of discharge characterization. c. The Board determined the discharge is inequitable based on the applicant's Anxiety Disorder and MDD mitigating the basis of separation - 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. Based on the applicant's medical diagnosis the Board determined the reentry code was 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 Board found sufficient evidence of in-service mitigating factors (Length, Quality, Combat) and concurred with the conclusion of the medical advising official that the applicant's Anxiety Disorder and MDD does mitigate the applicant's wrongful use of marijuana. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. 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 based on the applicant's medical diagnosis, the Board determined the reentry code was proper and equitable and voted not to change it. 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 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 AR20200009978 1