1. Applicant's Name: a. Application Date: 5 June 2020 b. Date Received: 23 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 general (under honorable conditions). The applicant requests an upgrade to honorable and a narrative reason, separation code, and reentry code change. The applicant seeks relief contending, in effect, post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and other mental health conditions are related to the applicant's request. The discharge was procedurally defective; the administrative discharge was unfair; and the general (under honorable conditions) discharge is inequitable. The applicant was seriously injured while in the service and the applicant's mental issues, behavioral issues, and pain management should have been considered. The applicant should receive liberal consideration. The applicant was undergoing a medical evaluation board (MEB) at the time of separation. On 17 April 2018, the applicant was involved in a severe accident during a field training exercise at Fort Riley. The circumstances surrounding the injury or illness related to a dysfunctional M2 Bradley Fighting Vehicle the commander forced the Soldiers to use in the exercise. A line of duty investigation was swept under the rug. The applicant was diagnosed with chronic bronchitis and later, reactive airway disease. The applicant was transferred to the Warrior Transition Battalion (WTB) and began testing and treatment. The applicant was diagnosed with severe, persistent asthma and allergic rhinitis. The applicant was at the WTB a year before the MEB began. The applicant's parent reached out to the congressman and the MEB process began. In December 2018, while on leave, the applicant's friend offered the applicant MDMA because the applicant was battling high levels of stress with mixed anxiety and depression. On 6 March 2019, the applicant returned home from a course and was notified by the applicant's noncommissioned officer, a large number of drugs was found in the applicant's roommate's room. The applicant and the roommate were administered a urinalysis and the applicant tested negative. The next week the applicant was questioned by the Criminal Investigation Division (CID) regarding the roommate's activities, but CID began to interrogate the applicant. Under duress, the applicant admitted to using MDMA (methylenedioxymethamphetamine) in January 2019. The applicant does not remember admitting to using marijuana. There is no statement in the CID report from the applicant, just a short summary provided by CID. After the MEB began; the applicant was informed the applicant would be processed for separation for admitting to the drug use. The separation authority decided to administratively separate the applicant rather than through disability processing. During the MEB proceedings, the applicant submitted multiple claims to the Department of Veterans Affairs (VA) for service- connected injuries and illnesses. The applicant was prosecuted unfairly because the investigation was based on the applicant's word and not solid evidence. The applicant served 90 percent of the enlistment contract honorably. The applicant requests a medical discharge and a review of the CID report to confirm the report was presented to the commanding general. Counsel and the applicant further detail the contentions in letters submitted with the application. b. Board Type and Decision: In a records review conducted on 07 June 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Chronic Adjustment DO (CAD) outweighing the basis for separation - wrongfully used marijuana. 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, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 21 May 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 April 2020 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana and MDMA on or about 1 January 2019. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 21 April 2020 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 May 2020 / General (Under Honorable Conditions) / Memorandum for Record, dated 1 May 2020, reflects the separation authority determined the applicant's medical condition was not a direct of substantial contributing cause of the misconduct and there were no other circumstances which warranted continued PEB processing. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 February 2017 / 3 years, 20 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19D10, Calvary Scout / 3 years, 3 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Record, dated 6 March 2019 reflects on 6 March 2019, a weekly inspection of the applicant's and the applicant's roommate barracks room resulted in a call to the Military Police (MP) after company cadre smelled possible drugs in the common area. The MP sweep discovered a smoking device. The company commander and the judge advocate determined there was probable cause for a urinalysis. Electronic Copy of DD Form 2624, dated 2 April 2019, reflects the applicant tested negative during a Probable Cause (PO) urinalysis testing, conducted on 6 March 2019. Report of Medical Examination dated 21 October 2019, the examining medical physician noted in the comments section: Soldier has been referred to the medical board and is completing the IDES (Integrated Disability Evaluation System) process. The applicant is to continue all medications as prescribed. Follow-up with pulmonologist is scheduled for 13 November 2019. Report of Mental Status Evaluation, dated 28 October 2019, 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 for psychiatric purposes. Encounter for observation for other suspected disease and condition rule out Z03.89; other medical diagnoses: noncontributory. Impartial Medical Review, dated 11 December 2019, reflects the applicant underwent a medical evaluation board (MEB) and the board was completed on 2 December 2019. The applicant requested an opinion regarding a diagnosis and finding of fitness for the applicant's claim of angina pectoris, unspecified. The medical review was conducted on the findings and recommendations of the Narrative Summary (NARSUM), Department of Veterans Affairs claim examination (VA C&P), Armed Forces Health Longitudinal Technology Application (AHLTA) documents and MEB case file. The MEB found the applicant failed retention standards for asthma; allergic rhinitis condition, with existed prior to service, but was permanently aggravated by service, April 2018 attack (halon gas exposure). The MEB and NARSUM are unavailable for review. Law Enforcement Report - 1st Corrected Final, dated 27 January 2020, reflects an investigation established the applicant committed the offense of Wrongful Use of Marijuana and MDMA on 1 January 2019. The applicant was interviewed and admitted to using marijuana and methylenedioxymethamphetamine (MDMA) while at an off-post location. Numerous Developmental Counseling Forms, for failing to obey order or regulation; failing to be at the appointed place of duty; lying to a commissioned officer; and being informed of suspension of favorable actions because of pending separation. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, dated 1 November 2019, reflects the applicant reported anxiety; sleep apnea; mild depression; a head injury; halon exposure; heart problems; and various injuries. The examining medical physician noted in the comments section: The Report of Medical History reviewed, and all issues were being addressed. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; attorney letter; self-authored statement; separation documents; two third party character references; and award certificates. 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) 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 (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-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. 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. 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 and a narrative reason, separation code, and 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 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 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 an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends being diagnosed with PTSD, TBI, other mental health conditions, and several illnesses, and the conditions affected behavior which led to the discharge. The applicant's AMHRR contains documentation which reflects the applicant was being processed under the IDES and failed retention standards for asthma; allergic rhinitis condition, with existed prior to service, but was permanently aggravated by service, April 2018 attack (halon gas exposure). The MEB and NARSUM are unavailable for review. The applicant underwent a medical examination on 21 October 2019, which reflects the applicant is completing the IDES process and to follow-up with the pulmonologist. The applicant reported anxiety; sleep apnea; mild depression; a head injury; halon exposure; heart problems; and various injuries. The medical physician indicated the issues were being addressed. The applicant underwent a mental status evaluation, which 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 for psychiatric purposes. The medical documents were considered by the separation authority. The applicant contends good service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the discharge was procedurally defective. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the separation authority should have allowed the applicant to continue with the DES process. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Disability Evaluation System (DES) and is subsequently processed for an involuntary administrative separation for misconduct, the disability evaluation may continue to completion of the MEB phase. If referral to a Physical Evaluation Board (PEB) is warranted, the MEB will be forwarded to the GCMCA to determine whether to proceed with the DES process or the administrative separation proceedings. The applicant contends the applicant should receive medical retirement. The applicant's requested change to the DD Form 214 does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good military service. 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: Chronic Adjustment DO (CAD). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that VA service connection establishes that the diagnosis of CAD began during 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 a mitigating BH condition, Chronic Adjustment Disorder. As there is an association between CAD and use of illicit drugs to self-medicate emotional symptoms, there is a nexus between applicant's diagnosis of CAD and his wrongful use of MDMA and marijuana. (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 Chronic Adjustment DO (CAD) outweighed the basis for separation - wrongfully used of marijuana - for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the narrative reason, 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 Chronic Adjustment DO (CAD) outweighing the wrongfully used of marijuana 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. An 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 being diagnosed with PTSD, TBI, other mental health conditions, and several illnesses, and the conditions affected behavior which led to the discharge. The Board considered this contention and found that the applicant was screened negative for PTSD. However, the applicant discharge was inequitable based on the applicant's CAD outweighing the basis for separation. (4) The applicant contends good service. 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 CAD outweighing the applicant's misconduct - wrongfully used of marijuana basis for separation. (5) The applicant contends the discharge was procedurally defective. 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 CAD outweighed the wrongfully used of marijuana. (6) The applicant contends the separation authority should have allowed the applicant to continue with the DES process. The Board considered this contention during proceedings and determine that whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. However, the found that the applicant discharge was inequitable based on the applicant's CAD outweighing wrongfully used of marijuana the basis for separation. (7) The applicant contends the applicant should receive medical retirement. The Board considered this contention and determined that Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. c. The Board determined the discharge is inequitable based on the applicant's Chronic Adjustment DO (CAD) outweighing the basis for separation - wrongfully used marijuana. Thus, warranting relief. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's CAD outweighed the basis for separation - wrongfully used marijuana. 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 AR20200010154 1