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: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, will be attending school to obtain an EMT and paramedic license to become a firefighter; however, is unable because of the characterization of the discharge. The applicant is currently CPR certified, a Hazmat technician, and a USAR rescue team technician. The applicant enjoys helping people and is close to their goal. The applicant has something to offer the community. In time the applicant would like to sign another contract with the Army since the issues the applicant was had have been resolved. b. Board Type and Decision: In a records review conducted on 3 August 2023, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's Depression mitigating the two occasions of possessing marijuana and wrongful use of marijuana. However, the applicant's remaining unmitigated misconduct - making a false official statement - fell below that level of meritorious service warranted for an upgrade to Honorable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions and to change the RE code to RE-3. The Board determined the narrative reason/SPD code were proper and equitable and voted not to change them. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 27 November 2013 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 28 October 2013, the applicant was charged with: Charge I: Violating Article 107, UCMJ. The Specification: On or about 9 September 2013, with intent to deceive, make to Officer T. W., an official statement, which statements were totally false and known by the applicant to be so false. Charge II: Violating Article 112a, UCMJ. Specification 1: On or about 9 September 2013, wrongfully possess some amount of marijuana, a Schedule I controlled substance. Specification 2: On or about 11 August 2013 and on or about 10 September 2013, wrongfully use marijuana, a Schedule I controlled substance. Specification 3: On or about 19 September 2013, wrongfully use marijuana, a Schedule I controlled substance. Specification 4: On or about 19 September 2013, wrongfully possess some amount of marijuana, a Schedule I controlled substance. (2) Legal Consultation Date: 1 November 2013 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 18 November 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 January 2012 / 4 years b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-3 / 12B10, Combat Engineer / 1 year, 10 months, 25 days 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: Background Check - Specimen Data, dated 16 July 2013, reflects the applicant tested positive for THC, during an Inspection Unit (IU) urinalysis testing, conducted on 16 July 2013. CID Report of Investigation - Final (c) - 0444-2013-CID013-34140-5Y2B4 / 5L3C / 5L2C, dated 24 September 2013, investigation established probable cause to believe the applicant committed the offense of Wrongful Possession of Marijuana when Marijuana was found in the pants pocket after being apprehended by the Military Police. CID Report of Investigation - Initial Final (c) - 0461-2013-CID013-34155-5L2C / 5L2D2, dated 25 September 2013, investigation determined there was probable cause to believe the applicant and PVT C. both committed the offenses of Wrongful Use and Possession of Marijuana when they were found in the applicant's barracks room consuming Marijuana by their NCO's. During the interview PVT C. confessed to consuming Marijuana with the with applicant which was obtained from a civilian off post. The applicant invoked and stated the applicant did not want to be questioned. Electronic Copy of DD Form 2624, dated 25 September 2013, reflects the applicant tested positive for THC 308, during a Probable Cause (PO) urinalysis testing, conducted on 10 September 2013. Two Developmental Counseling Forms, for Pattern of misconduct/use of illegal substance; requirement of constant supervision to prevent further instances; discuss being arrested for possession of illegal substance. use of illegal substances; and, being arrested for possession of illegal substance. Charge Sheet as described in previous Paragraph 3c(1). i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Multidisciplinary Discharge Note, dated 7 August 2013, reflects the applicant was diagnosed with: Axis I: Polydrug Dependence; depressive D.O NOS and Axis IV: Legal Stressors. Report of Medical Examination, dated 28 August 2013, the examining medical physician noted in the comments section: Substance Abuse, headaches, anxiety, depression and insomnia. Report of Medical History, dated 4 September 2013, the examining medical physician noted in the comments section: Currently being treated by behavioral health for anxiety and insomnia as well as depression x 3 - 4 weeks. Medications are helping as is behavioral health. Currently enrolled in ASAP. (2) AMHRR Listed: Report of Mental Status Evaluation, dated 22 August 2013, 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. The applicant had been screened for PTSD and mTBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The applicant was diagnosed with: Axis I: Depression and Substance Abuse. Report of Medical History, dated 4 September 2013, the examining medical physician noted in the comments section: Currently being treated by behavioral health for anxiety and insomnia as well as depression x 3 - 4 weeks. Medications are helping as is behavioral health. Currently enrolled in ASAP. Report of Medical Assessment, dated 5 September 2013, the examining medical physician noted in the comments section: Substance Abuse, Anxiety, Depression and Insomnia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is CPR certified, a Hazmat technician; and, a USAR rescue technician. 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) Paragraph 3-7c states 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. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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 waivable and nonwaivable 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 waivable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 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. The applicant desires to rejoin the Military Service since the applicant has resolved the issues they were having. 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 is CPR certified, a Hazmat technician; and a USAR rescue technician. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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: Depression, Anxiety. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with Depression and Anxiety. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between Depression and self-medicating with substances, the applicant's Depression mitigates possession and use of marijuana. However, there is no natural sequela between Depression or Anxiety and making false official statements since neither condition interferes with the ability to distinguish between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, to include the Board Medical Advisor opine, the Board determined that the applicant's depression outweighed the medically mitigated 2x wrongful possession of marijuana and wrongful use of marijuana misconduct. The remaining misconduct of making a false official statement is not medically mitigated; however, the board determined it does not warrant an Under Other Than Honorable discharge. b. Response to Contention(s): (1) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention, but it does not grant relief to gain employment or enhance employment opportunities. (2) The applicant desires to rejoin the Military Service since the applicant has resolved the issues they were having. The Board considered this contention and voted to change 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 is CPR certified, a Hazmat technician; and, a USAR rescue technician. The Board considered this contention and determined that, based on the applicant's post- service accomplishments and the applicant's partial medical mitigation as referenced in paragraph 9a(3), a discharge upgrade to General is warranted. c. The Board determined that the characterization of service was inequitable based on the applicant's Depression mitigating the two occasions of possession of marijuana and wrongful use of marijuana misconduct. However, the applicant's remaining unmitigated misconduct - making a false official statement - fell below that level of meritorious service warranted for an upgrade to Honorable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions and to change the RE code to RE-3. The Board determined the narrative reason/SPD code were proper and equitable and voted not to change them. However, the applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General Under Honorable Conditions because the applicant's depression mitigated the applicant's two occasions of possession of marijuana and wrongful use of marijuana misconduct. However, the applicant's remaining unmitigated misconduct - making a false official statement - fell below that level of meritorious service warranted for an upgrade to Honorable. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code as the reason the applicant was discharged was both proper and equitable. (3) The Board voted to change the RE code to RE-3 based on the applicant's Depression diagnosis requiring a medical waiver to rejoin military service. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: RE-3 e. Change Authority to: No Change 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 AR20210000844 1