1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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, through counsel, an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant entered the Army on 9 June 2004 and was awarded the military occupational specialty 92S, Laundry Shower and Renovation Specialist. After successfully serving for two and a half years, including combat duty in Iraq, he turned to drugs to cope with the stressors in his life. The applicant realizes this was a poor decision and he sacrificed his military career due to one serious indiscretion. The applicant regrets his lapse in judgment. On 19 October 2006, the applicant returned home from Iraq and went home on leave to visit his mother who was suffering depression due to her husband's cancer treatment. The applicant turned to friends for comfort and made a bad decision to use drugs instead of face his home situation and deal with the emotional turmoil due to deployment. The applicant was separated based on his illegal drug use, and was separated pursuant to Army Regulation 635-200, paragraph 14-12c, for misconduct, one-month shy of his initial three-year tour. The applicant was separated for making one mistake and serving a long tour in Iraq. Fellow Soldiers described the applicant as an exceptional Soldier. The applicant's battalion commander recommended suspending his separation; however, the brigade commander separated the applicant with a general (under honorable conditions). In November 2007, the applicant was evaluated by the VA Hospital in New York for Post- Traumatic Stress Disorder and received a negative result. The VA reevaluated the applicant in May 2009, with a positive result for PTSD. It was discovered the applicant was likely suffering from PTSD since serving in Iraq in 2006. The applicant described three specific experiences which continue to plague his thoughts: The applicant was assigned to the morgue as a part of the funeral detail; while being treated for a shoulder injury at the hospital, the applicant saw a man who was burned by street tar; and, the applicant was shot at while performing security detail. The applicant witnessed a Soldier attempt to commit suicide and an NCO stab another NCO. The applicant resorted to drug and alcohol to numb himself and the thoughts which plagued him. The applicant lost interest in various activities; his family and personal relationships have suffered; and he believes his future is hopeless. The applicant suffered for years from undiagnosed PTSD, but under the care of mental health professionals, with counseling and medication the applicant is able reclaim his life. The applicant's discharge limits his options for mental health treatment and career choices. The applicant received a Field Grade Article 15 and was fairly punished by a reduction in rank and a fine. An upgrade of the applicant's discharge would allow him to continue his mental health treatment and allow better employment opportunities. The applicant requests to change his narrative reason to expiration of term of service. In a records review conducted on 24 March 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on applicant's PTSD outweighing the medically mitigated wrongful drug use that was 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 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. 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: 4 May 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 March 2007 (2) Basis for Separation: The applicant was informed under the provisions of Army Regulation 635-200, Chapter 14-12c for Commission of a Serious Offense for the following reasons: The applicant between 11 November and 11 December 2006, wrongfully used marijuana. The applicant received a Field Grade Article 15 for his misconduct. (3) Recommended Characterization: General (Under Honorable Conditions) / The intermediate commander (battalion commander) recommended the separation be suspended for 12 months. (4) Legal Consultation Date: 22 March 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) / The separation authority approved the separation under the provisions of Army Regulation 635-200, Chapter 14-12c for Commission of a Serious Offense. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 March 2006 / 6 years b. Age at Enlistment / Education / GT Score: 20 / GED / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92S10, Shower / Laundry / Clothing Repair Specialist / 2 years, 10 months, 26 days d. Prior Service / Characterizations: RA, 8 June 2004 - 13 March 2006 / HD / Based on the applicant's initial enlistment contract, it appears his DD Form 214, block 22a, erroneously reflects 9 June 2004. e. Overseas Service / Combat Service: SWA / Iraq (2 November 2005 - 1 November 2006) f. Awards and Decorations: NDSM, ICM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 22 December 2006, reflects the applicant tested positive for THC 33 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 11 December 2006. Developmental Counseling Form, dated 5 January 2007, for testing positive for marijuana on a urinalysis test conducted by the company on 11 December 2007. FG Article 15, dated 11 January 2007, for wrongfully using marijuana (between 11 November and 11 December 2006). The punishment consisted of a reduction to E-2; forfeiture of $500 pay; extra duty for 45 days; and an oral reprimand. Report of Mental Status Evaluation, dated 18 January 2007, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant had the mental capacity to understand and participate in administrative proceedings. The mental status evaluation did not indicate any diagnosis. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a VA letter, dated 9 January 2012, reflecting the applicant was rated 40 percent combined service-connected disability. The medical condition was not revealed. The applicant provided medical record progress notes, dated 26 May 2009, reflecting the applicant was screened for PTSD by the Upstate New York in November 2007, with a negative result; however, it seems likely the applicant may have minimized some of his symptoms at that time. On 21 May 2009, the applicant was evaluated for PTSD by the VA and tested positive. The applicant was diagnosed with: Axis IV - Post-traumatic stress disorder; Rule Out depression not otherwise specified; Alcohol Abuse in remission; and, Cannabis abuse. Axis V - Problems with primary support group; Problems related to social environment; Occupational problems; Economic problems. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293; ARBA Case Management Letter; counsel legal brief; DD Form 214; VA letter; medical record progress notes; two third-party statements. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. (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. 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 for the discharge needs to be changed to expiration of term of service. Based on the applicant's 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, "JKK"; and block 28, "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), with a general (under honorable conditions) discharge. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c, is "JKQ." The applicant contends he suffered from undiagnosed PTSD and had family issues, which affected his behavior and led to his discharge. The applicant provided VA document reflecting he was rated 40 percent combined service-connected disability and medical documents reflecting he was diagnosed with: Axis IV - Post-traumatic stress disorder; Rule Out depression not otherwise specified; Alcohol Abuse in remission; and, Cannabis abuse. Axis V - Problems with primary support group; Problems related to social environment; Occupational problems; Economic problems. The applicant's AMHRR reflects he underwent a mental status evaluation (MSE) on 18 January 2007, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant had the mental capacity to understand and participate in administrative proceedings. The mental status evaluation did not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service, including a combat tour. The third party statements speak highly of the applicant. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade would allow him to receive medical benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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 the applicant is diagnosed and service connected by the VA with combat-related PTSD that may mitigate the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant is service connected by the VA with combat-related PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that applicant's PTSD mitigated the applicant's self-medicating with wrongful drug use that was the basis for 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 basis for separation. b. Response to Contentions: (1) The applicant contends the narrative reason for the discharge needs to be changed to expiration of term of service. The Board considered this contention and voted to change the narrative reason to Misconduct (Minor Infractions) due to applicant's PTSD mitigating the basis of separation. (2) The applicant contends he suffered from undiagnosed PTSD and had family issues, which affected his behavior and led to his discharge. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's wrongful use of marijuana. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention. However, the Board voted to upgrade the characterization of service due to PTSD mitigating the applicant's wrongful use of marijuana. (4) The applicant contends good service, including a combat tour. The third party statements speak highly of the applicant. The Board considered this contention. However, the Board voted to upgrade the characterization of service due to PTSD mitigating the applicant's wrongful use of marijuana. (5) The applicant contends an upgrade would allow him to receive medical benefits. The Board determined that eligibility for Veteran's benefits, including healthcare, does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (6) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. c. The Board determined the discharge is inequitable based on applicant's PTSD outweighing the medically mitigated wrongful drug use that was the basis for applicant's separation 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 medically mitigated misconduct of marijuana use, which was the basis of separation. (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 the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: 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 AR20210000158 4