1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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, his discharge was unwarranted because Army Regulation 635-200, paragraph 1-33a states "Except on separation actions under Chapter 10 and as provided in para 1-34b, disposition through medical channels takes precedence over administrative separation processing." At no time during the applicant's discharge did anyone in his chain of command take any actions for his mental state. On 4 October 2007, Lieutenant Colonel (LTC) M.A. evaluated the applicant's mental status. LTC M.A. found the applicant to be hostile, depressed, and abnormal. In LTC M.A.'s remarks he states "SM appears to have PTSD from the war" and "Rec Command consider Ch 5-17 discharge under present circumstances." The commander failed to go through the right medical channels to make sure the applicant was not at risk for PTSD. In AR 635-200 paragraph 1-16a it states "it is essential that Soldiers, who falter, but have the potential to serve honorably and well, be given every opportunity to succeed." The applicant was punished with a Field Grade Article 15, given extra duty for 45 days, reduction in rank, and forfeiture of half his pay for two months. The applicant learned from his Article 15, his punishment was fair and practical. While the applicant was on the waiting list for three weeks for the course to start, he was discharged from the service. The applicant never began the ASAP course or completed his extra duty. It was feasible in the applicant's mind his commander would punish him to full extent, but not attempt to rehabilitate him. Why? On 30 May 2008, the Department of Veterans Affairs granted the applicant 30 percent disability for post-traumatic stress disorder after waiting five months. On 1 July 2010, after a revaluation, the VA granted the applicant 50 percent service connected disability for PTSD. One day after the applicant was discharged from the Army the VA determined the applicant had PTSD. LTC M.A. indicated the applicant had PTSD on 4 October 2007. The applicant believes his chain of command should have followed the regulation and processed him through medical channels. The applicant requests to change his separation to chapter 5-17. In a records review conducted on 17 March 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable because the applicant's medically mitigated wrongful drug use and FTR that were the basis for applicant's separation are outweighed by the applicant's PTSD. 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, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 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: 6 November 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 October 2007 (2) Basis for Separation: The applicant was informed under the provisions of Army Regulation 635-200, Paragraph 14-12c (Serious Misconduct), of the following reasons: The applicant did, at Fort Hood, TX, between 5 August and 4 September 2007, wrongfully use marijuana and on 21 September 2007, without authority fail to go at the time prescribed to his appointed place of duty, to wit: 1700 hours end of day formation. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 17 October 2007 / Memorandum, dated 19 October 2007, reflects the applicant's immediate commander indicated the applicant consulted with legal counsel, CPT D, who returned the packet to the unit stating "Other-see MH eval-possible PTSD & TBI. Rec for 5-17. SM likely needs a Med Board or final diagnosis for either condition." The applicant was sent back to TDS on 18 October 2007, but CPT D, refused to sign indicating the applicant had been counseled. The applicant did not sign the election rights. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 25 October 2007 / General (Under Honorable Conditions) / The separation was approved under the provisions of Army Regulation 635-200, Paragraph 14-12c (Serious Misconduct). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 November 2002 / 6 years b. Age at Enlistment / Education / GT Score: 19 years / HS Graduate / 119 c. Highest Grade Achieved / MOS / Total Service: E-5 / 15R10, Attack Helicopter Repairer / 4 years, 11 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (15 March 2005 - 18 March 2006) f. Awards and Decorations: ARCOM-2, AAM, AGCM, NDSM, ACM, GWOTSM, NCOPDR, ASR, OSR-2 g. Performance Ratings: 1 August 2005 - 15 July 2006 / Fully Capable 31 July 2006 - 30 June 2007 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 11 September 2007, reflects the applicant tested positive for THC 32 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 4 September 2007. Memorandum, subject: Recommendation for Separation Under AR 635-200, Chapter 14, Paragraph 14-12c (Serious Misconduct), dated 22 October 2007, reflects the applicant received a Field Grade Article 15 on 10 October 2007. The punishment consisted of reduction to E-4; forfeiture of $989 pay per month for two months; and extra duty for 45 days. Two Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a Report of Mental Status Evaluation, dated 4 October 2007, reflecting the applicant had the mental capacity to understand and participate in the proceedings; was mentally responsible; and met retention the requirements of Chapter 3, AR 40-501 (Does not have an unfitting diagnosis that would require medical evaluation board). The applicant appears to have PTSD from war and may have TBI. The psychologist recommended the applicant receive a general discharge and the command consider separation under chapter 5-17 discharge under present circumstances. The applicant was diagnosed with PTSD (provisional); TBI (provisional); and cannabis use; possible personality effect from head injuries in Iraq. Memorandum, subject: Administrative Separation IAW AR 635-200, Chapter 14-12c, [Applicant], dated 24 October 2007, the applicant's defense counsel requested the applicant be considered for separation under Chapter 5-17, instead of separating him under Chapter 14-12c. Counsel indicated a licensed clinical psychologist recommended the command consider the applicant for Chapter 5-17. Counsel referenced AR 635-200, paragraph 1-33a, regarding medical processing and paragraph 1-16a regarding counseling and rehabilitation. The applicant provided VA Rating Decision, dated 23 June 2010, reflecting the applicant was rated 70 percent disabling for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA Rating Decision; Memorandum for Record; defense counsel memorandum; Report of Mental Status Evaluation; VA Rating Decision; two VA letters; Rear Detachment Alert Roster; separation orders; Enlisted Record Brief; DD Form 214. 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 prescribes 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. (7) 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. (8) 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, 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-4 applies to a 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. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason needs to be changed to other designated physical or mental conditions under paragraph 5-17. Based on 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);" block 26, Separation Code as "JKK;" and, 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, Misconduct (Serious Offense). Enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, will be assigned a Separation Code of "JKQ," and a Narrative Reason for Separation as "Misconduct (Serious Offense)" per Army Regulation 635-5- 1. The applicant contends he suffered from PTSD and TBI. The applicant's provided a mental status evaluation (MSE) reflecting he underwent an MSE on 4 October 2007, and the psychologist determined the applicant had the mental capacity to understand and participate in the proceedings; was mentally responsible; and met retention requirements of Chapter 3, AR 40-501 (Does not have an unfitting diagnosis that would require medical evaluation board). The applicant appears to have PTSD from war and may have TBI. The psychologist recommended the applicant receive a general discharge and the command consider separation under chapter 5-17 discharge under present circumstances. The applicant was diagnosed with PTSD (provisional); TBI (provisional); and cannabis use; possible personality effect from head injuries in Iraq. The applicant provided VA documents reflecting he was rated 70 percent disability for PTSD. The applicant contends he received no assistance from the command regarding his medical condition. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the command did not rehabilitate him in accordance with Army Regulation 635-200, paragraph 1-16a. Army Regulation 635-200, paragraph 1-17a (previously 1-16a), states commanders will ensure adequate counseling and rehabilitative measures are taken before initiating separation proceedings for the various reasons. The paragraph excludes separations under paragraph 14-12c, commission of a serious offense, and 14-12c (2), abuse of illegal drugs or alcohol. Paragraph 1-17d(2), states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. The applicant contends he should have been processed under medical channels in accordance with Army Regulation 635-200, paragraph 1-33a because disposition through medical channels takes precedence over administrative separation processing. The applicant's AMHRR is void of any documentation reflecting the applicant was pending a medical evaluation board. The psychologist noted the applicant met retention standards. 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. 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 and determined the applicant had combat-related PTSD that could mitigate the applicant's wrongful drug use and FTR that were the basis for applicant's separation. (2) Did the condition exist or experience occur during military service? Yes. The Board arrived at this finding based upon the applicant being diagnosed and service connected by the VA for combat-related PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor found, after applying Liberal Consideration that given the nexus between PTSD, self-medicating with substances, and avoidance, applicant's PTSD mitigates applicant's wrongful use of marijuana and the FTR that led to applicant's separation. (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, after applying liberal consideration, that applicant's PTSD outweighed the medically mitigated wrongful drug use and FTR that were the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends the narrative reason needs to be changed to other designated physical or mental conditions under paragraph 5-17. The Board considered this contention during proceedings, but ultimately did not rely on this contention to warrant an upgrade being granted based on the applicant's PTSD outweighing the applicant's FTR and drug use bases for separation. (2) The applicant contends suffering from PTSD and TBI and should have been processed under medical channels in accordance with Army Regulation 635-200, paragraph 1- 33a. The Board liberally considered the applicant's assertion of PTSD and TBI, but in accordance with the applicable version of AR 635-200, applicant was appropriately separated under a non-Chapter 5 basis for separation, however, the Board voted to upgrade the characterization of service due to applicant's PTSD outweighing the applicant's FTR and drug use charges, thereby making the original discharge inequitable. (3) The applicant contends he received no assistance from the command regarding his medical condition and did not rehabilitate him in accordance with Army Regulation 635-200, paragraph 1-16a. The Board determined that the weight of the evidence did not support a conclusion that there was any command arbitrary or capricious command actions throughout the applicant's discharge process. c. The Board determined the discharge is inequitable, after applying liberal consideration, that applicant's PTSD outweighed the medically mitigated wrongful drug use and FTR that were the basis for applicant's separation. 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, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD outweighed the applicant's medically mitigated misconduct of marijuana use and FTR. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the applicant's reason for discharge and the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, Chapter 15 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 AR20210000155 1