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, trying to better oneself by getting a job, but is prevented by the type of discharge. The applicant states making mistakes and learning from them and wishes the applicant were still in the military. b. Board Type and Decision: In a records review conducted on 31 October 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General 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. The Board determined the reentry code is proper and equitable and voted not to change it. 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, Chapter 14-12c (2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 22 May 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 April 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used hydrocodone and hydromorphone and were absent without leave from on or about 14 January 2013 until apprehended on or about 13 February 2013. Also, the applicant failed to report to the applicant's assigned place of duty and were disrespectful to noncommissioned officers on diverse occasions. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 2 May 2013 (5) Administrative Separation Board: On 2 May 2013, the applicant unconditionally waived consideration of the case before an administrative separation board as part of an Offer to Plead Guilty in a Summary / Special Court-Martial proceedings. (6) Separation Decision Date / Characterization: 17 May 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 December 2011 / 4 years b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 4 years, 1 month, 4 days d. Prior Service / Characterizations: RA, 25 February 2009 - 20 December 2011 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (26 February 2011 - 8 January 2012) f. Awards and Decorations: ARCOM, NATOMDL, AGCM, NDSM, ACM-2CS, GWOTSM, ASR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, 16 October 2012, reflects the applicant tested positive for HYCOD 8663, HYMOR 1202, OXCOD 679, and OXMOR 1615, during an Inspection Random (IR) urinalysis testing, conducted on 3 October 2012. Charge Sheet, 7 March 2013, reflects the applicant was charged with: Charge I: Violation of the UCMJ, Article 86. The Specification: Without authority absent oneself from their unit on or about 14 January 2013 and did remain so absent until apprehended on or about 13 February 2013. Charge II: Violation of the UCMJ, Article 112a: Wrongful use, possession of controlled substance. Specification 1: On or about 1 October 2012 and on or about 3 October 2012, wrongfully use hydrocodone. • Specification 2: On or about 1 October 2012 and on or about 3 October 2012, wrongfully use hydromorphone. Record of Trial by Summary Court-Martial, reflects the applicant was charged with: Charge I: Violation of the UCMJ, Article 86. The Specification: Without authority absent oneself from their unit on or about 14 January 2013 and did remain so absent until apprehended on or about 13 February 2013. Charge II: Violation of the UCMJ, Article 112a: Wrongful use, possession of controlled substance. Specification 1: On or about 1 October 2012 and on or about 3 October 2012, wrongfully use hydrocodone. • Specification 2: On or about 1 October 2012 and on or about 3 October 2012, wrongfully use hydromorphone. The sentence adjudged: Forfeiture $768 for one month; reduction to E-1 confine for one month. Presentence confinement 15 days. Four Personnel Action forms, reflect the applicant's duty status changed as follows: From "PDY" to "AWOL," effective 14 January 2013; From "AWOL" to "CCA," effective 13 February 2013; From "CCA" to "CMA," effective 26 February 2013; and From "CMA" to "PDY," effective 28 February 2013. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 54 days: AWOL, 14 January 2013 - 27 February 2013 / Apprehended by Civil Authorities CMA, 28 March 2013 - 7 April 2013 / Release from Military Authorities j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, 6 December 2012, 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 with negative results and mTBI with positive results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was diagnosed with: Adjustment Disorder. The applicant reported no alcohol abuse and stated no substance abuse, other than using oxycodone after the prescription expired. The applicant was cleared for all administrative proceedings for chapter 14-12c(2). On 3 October 2012, the applicant was cleared to RTD after blast exposure. No referral to TBI clinic indicated. 5. APPLICANT-PROVIDED EVIDENCE: Online application and 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 (Active Duty Enlisted Administrative Separations) 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 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. (6) 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. (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-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. 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. 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's AMHRR shows the applicant underwent a mental status evaluation (MSE) on 6 December 2012, which supports a diagnosis of in-service Adjustment Disorder. The MSE was considered by the separation authority. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct before and after leaving the Army. 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: Adjustment Disorder with Anxiety and Depressed Mood. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnosis was rendered during the applicant's active service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a potentially mitigating diagnosis of Adjustment Disorder with Anxiety and Depressed Mood, however, there is no evidence the adjustment disorder was of such severity as to have noteworthy impact on behavior, judgment, or cognition and therefore is not further considered for mitigation, and records are void of any other BH condition that would mitigate the applicant's misconduct. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant's Adjustment Disorder with Anxiety and Depressed Mood outweighed the medically unmitigated AWOL, illegal drug abuse, disrespect toward an NCO, and FTR offenses. b. Response to Contention(s): (1) The applicant contends an upgrade of the applicant's DD214 will allow the applicant to obtain employment and better the applicant's self. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. The Board did determine to upgrade the applicant's characterization of service due to the applicant's four years of service, numerous awards, and combat deployment to Afghanistan. (2) The applicant wishes the applicant were still in the Military Service. The Board considered this contention and voted to maintain the RE-code at RE-4, as the Board concurred with the separation authority that the applicant is not suitable for further military service. (3) The applicant contends that the applicant's DD214 shows that the applicant was incarcerated and this is holding the applicant back. The Board considered this contention and determined that the DD214 accurately reflects that the applicant was discharged for Misconduct (Drug Abuse) and that the applicant's Lost Time was due to the applicant's period of AWOL and confinement order. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General 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. The Board determined the reentry code is proper and equitable and voted not to change it. 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 because the applicant's four years of service, numerous awards, and combat deployment to Afghanistan partially outweighed the applicant's medically unmitigated misconduct of AWOL, illegal drug abuse, disrespect toward an NCO, and FTR . The applicant's General Discharge is proper and equitable as the applicant's misconduct fell below that level of meritorious service warranted for an upgrade to Honorable Discharge. (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 Board concurred with the separation authority that the applicant is not suitable for further military service and the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions a. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN b. Change RE Code to: No Change c. Change Authority to: AR 635-200 Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210001534 1