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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, because of a failed drug test, the applicant was discharged with a general (under honorable conditions). The applicant has had many struggles with being an addict over the years, but the applicant successfully completed a drug treatment program and has been sober and clean and living a productive life. Addiction is a disease the applicant must treat daily. The applicant does not want to die from the disease and for assurance, the applicant attends Narcotics Anonymous (NA) / Alcoholics Anonymous (AA) meetings daily and works with a sponsor. The applicant is active in the community and has a life; now the applicant is clean. The applicant only used drugs once in June 2005. The applicant was treated unfairly, and given it was two years after the incident, the applicant believes the officers were trying to find a reason to get rid of the applicant. The applicant was propositioned by one of the applicant's noncommissioned officers (NCOs) in 2006, while lying in a hospital bed and drugged up. The applicant turned the NCO down and as soon as the applicant was released from the hospital, within two weeks, the applicant received discharge papers, and the NCO threatened the applicant's life and to ruin the applicant. b. Board Type and Decision: In a records review conducted on 26 October 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Post Traumatic Stress Disorder (PTSD), Major Depression, and Military Sexual Trauma (MST) outweighing the applicant's illegal drug abuse, negligent discharge, and of negligently failing to stay awake while guarding the arms room offenses. 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. Accordingly, the narrative reason for separation was changed to Secretarial Authority with a corresponding separation code of JFF and reentry code of RE-3. Please see Section 9 of this document for more detail regarding the Board's decision. Board member names available upon request. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635-200, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 23 February 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 January 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for cocaine on 21 June 2005. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 January 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 5 February 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 September 2004 / 3 years, 26 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 100 c. Highest Grade Achieved / MOS / Total Service: E-2 / 63H10 Tracked Vehicle Mechanic / 2 years, 5 months, 2 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: Field Grade Article 15, 5 August 2005, for wrongfully using cocaine (between 18 and 21 June 2005). The punishment consisted of a reduction to E-1; forfeiture of $617 pay per month for two months; extra duty and restriction for 45 days; and an oral admonition. Company Grade Article 15, 26 September 2006, for being derelict in the performance of duties, by negligently failing to stay awake, while guarding the Arms Room (11 June 2006) and wrongfully and willfully discharging a firearm, under the circumstance such as to endanger human life (16 June 2006). The punishment consisted of a forfeiture of $59 and extra duty and restriction for 14 days. CID Report of Investigation - Final, 3 November 2006, reflects an investigation established probable cause to believe on 29 August 2006, Sergeant (SGT) E. B. committed the offenses of Indecent Assault against the applicant and False Official Statement. The applicant reported SGT E. B. indecently assaulted the applicant when the applicant was a patient at the Madigan Army Medical Center, Fort Lewis. SGT E. B. was interviewed and indicated it was the applicant who fondled SGT E. B. SGT E. B. later recanted the statement and admitted to the indecent assault. Commander's Report of Disciplinary or Administrative Action, 3 November 2006, reflects SGT E. B. was counseled for the offenses. Report of Mental Status Evaluation, 29 November 2006, 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. Five Developmental Counseling Forms, for: Missing accountability formation, Sleeping while on duty, Negligent discharge of a weapon, Having a positive urinalysis for a controlled substance, and Being recommended for separation because of receiving two Article 15s, Uniform Code of Military Justice. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, 2 November 2006, the applicant reported several medical issues, including anxiety attacks and being seen by Mental Health for depression. The examining medical physician noted in the comments section: Patient provided detailed description of all complaints. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293. 6. POST SERVICE ACCOMPLISHMENTS: The applicant successfully completed a drug treatment program and has been sober and clean, living a productive life, and is active in the community. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board) sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14- 12a or 14-12b as appropriate. (7) 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: 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 Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends an addiction affected behavior, which led to the discharge. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The applicant's AMHRR contains no documentation of mental health diagnosis. The AMHRR shows the applicant underwent a medical examination on 2 November 2006 and reported being seen by Mental Health for anxiety and depression. The applicant underwent a mental status evaluation (MSE) on 29 November 2006, which indicates the applicant was mentally responsible and recognized right from wrong. The medical examination and the MSE do not indicate any diagnosis. The medical examination and the MSE were 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, paragraph 3-5, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends sexual harassment by a member of unit. There is no evidence in the AMHRR indicating the applicant sought assistance or reported the harassment. The applicant contends being treated unfairly given the applicant was discharged two years after the incident. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends successfully completing a drug treatment program, being sober and clean, and being active in the community. 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: PTSD, MST, Major Depression, Anxiety Disorder NOS. (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 Major Depression and Anxiety Disorder NOS. The applicant is also diagnosed and service connected by the VA for PTSD related to MST established that PTSD and MST existed during military service. (3) Does the condition or experience excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant's conditions mitigate the discharge. Given the nexus between PTSD, MST, Major Depression, and self- medicating with substances, the cocaine use that led to the applicant's separation is mitigated. Additional misconduct of negligently failing to stay awake while guarding the arms room is also mitigated by Major Depression given the nexus with fatigue and difficulty sleeping. Without the specific details regarding the wrongful discharge of a firearm, the Board's Medical Advisor cannot determine if there is a nexus between applicant's PTSD/MST and the misconduct. However, the remaining unmitigated misconduct of wrongfully discharging a firearm is outweighed by the applicant's MST. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Post Traumatic Stress Disorder, Major Depression, and Military Sexual Trauma outweighed the applicant's illegal drug abuse, negligent discharge, and of negligently failing to stay awake while guarding the arms room offense. b. Response to Contention(s): (1) The applicant contends sexual harassment by a member of the unit. The Board liberally considered this contention and determined that the applicant's PTSD, Major Depression, and MST outweighed the applicant's illegal drug abuse, negligent discharge, and negligently failing to stay awake while guarding the arms room offenses. Therefore, a discharge upgrade is warranted. (2) The applicant contends an addiction affected behavior, which led to the discharge. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD, Major Depression, and MST outweighing the applicant's illegal drug abuse, negligent discharge, and negligently failing to stay awake while guarding the arms room offenses. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD, Major Depression, and MST outweighing the applicant's illegal drug abuse, negligent discharge, and negligently failing to stay awake while guarding the arms room offenses. (4) The applicant contends being treated unfairly given the applicant was discharged two years after the incident. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD, Major Depression, and MST outweighing the applicant's illegal drug abuse, negligent discharge, and negligently failing to stay awake while guarding the arms room offenses. (5) The applicant contends successfully completing a drug treatment program and being sober and clean and being active in the community. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD, Major Depression, and MST outweighing the applicant's illegal drug abuse, negligent discharge, and negligently failing to stay awake while guarding the arms room offenses. c. The Board determined the discharge is inequitable based on the applicant's PTSD, Major Depression, and MST outweighing the applicant's illegal drug abuse, negligent discharge, and negligently failing to stay awake while guarding the arms room offenses. 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. Accordingly, the narrative reason for separation was changed to Secretarial Authority with a corresponding separation code of JFF and the reentry code of RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD, Major Depression, and MST outweighed the applicant's illegal drug abuse, negligent discharge, and negligently failing to stay awake while guarding the arms room offenses. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts. Thus, the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The RE code will change 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 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 AR20210001565 1