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, the applicant believes the applicant deserves an honorable discharge because the applicant did not do anything wrong. The applicant was informed, the applicant failed the urinalysis in the Warrior Transition Unit (WTU). At the time, the applicant had no clue how the particular drug was in the applicant's system. The applicant had to research the drug and what the side effects. The applicant wrote a statement stating the same to the lieutenant colonel (LTC), but the LTC decided to chapter the applicant out of the service. It was not until June of this year (2015), the applicant found out how the drug entered the applicant's system. The applicant received a phone call from a person who was in the WTU at the same time the applicant was assigned. The reason the person called was because the person was in the Alcoholics Anonymous (AA) 12-Step drinking program and the person needed to request the applicant's forgiveness. The applicant was dumbfounded and angry at what the applicant was told, which was the applicant's significant other, at the time, drugged the applicant and was selling the applicant for sexual favors without the applicant's knowledge or consent. The applicant was in the process of a medical discharge and would have never jeopardized being discharged with anything other than an honorable discharge. The applicant served five and a half years with the Army National Guard (ARNG) and the Army. The applicant requests consideration for the fact the applicant openly admitted to making mistakes during the career; however, being accused of using the drug which gave the applicant the general (under honorable conditions) discharge was not the applicant's fault. The applicant tried to explain it to the supervisors and the chain of command without success. The applicant now knows the truth regarding how the drug was in the applicant's system and requests an honorable discharge. b. Board Type and Decision: In a records review conducted on 5 September 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Military Sexual Trauma outweighing the applicant's illegal drug abuse. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and leave the reentry eligibility (RE) code at 3 given the service limiting conditions. 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-3 / General (Under Honorable Conditions) b. Date of Discharge: 27 March 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 January 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant, between 2 September and 2 October 2012, used Oxymorphone, a Schedule II controlled substance. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 11 January 2013, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 8 March 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 April 2011 / Not to exceed 11 December 2011 / Orders A- 12-128329, 12 December 2011, as amended by Orders A-12-128329A03, 19 October 2012, reflect the applicant was retained on active duty to participate in Reserve Component Warriors in Transition Medical Retention Processing Program for Completion of medical evaluation, with an end date of 10 June 2013. b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-3 / 91B10, Wheeled Vehicle Mechanic / 5 years, 1 month, 1 day d. Prior Service / Characterizations: ARNG, 27 February 2007 - 7 April 2011 / NA IADT, 5 September 2007 - 14 March 2008 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Kuwait (5 July 2011 - 3 December 2011) f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, 15 October 2012, reflects the applicant tested positive for HYCOD 203 (hydrocodone), HYMOR 325 (hydromorphone), OXMOR 256 (oxymorphone), during a Probable Cause (PO) urinalysis testing, conducted on 2 October 2012. Medical Record Consultation Sheet, 22 October 2012, reflects the applicant's available medical records reveal there was no evidence of legitimate medical use for the positive oxymorphone. There was evidence of legitimate medical use for the hydrocodone and hydromorphone. Field Grade Article 15, 3 December 2012, for wrongfully using hydrocodone, hydromorphone, and oxymorphone, Schedule II controlled substances (between 2 September and 2 October 2012). The punishment consisted of a reduction to E-1; forfeiture of $745 pay per month for two months; extra duty and restriction for 45 days; and an oral admonition. Report of Medical Examination, 29 November 2012, the examining medical physician noted in the summary of defects and diagnoses section: Hearing loss; low blood pressure; neck pain; arthralgia; pes planus; P3, MEB, AR 40-501, Chapter 3. Criminal Investigation Division Report of Investigation - Final, 4 December 2012, reflects an investigation established probable cause to believe the applicant committed the offense of Wrongful Use of a Controlled Substance when the applicant submitted a urine specimen on 2 October 2012, during the conduct of a command directed urinalysis test, which subsequently tested positive for Oxymorphone. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, 11 December 2012, reflects the applicant was psychiatrically 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 post-traumatic stress disorder (PTSD) and mild traumatic brain injury (mTBI) with negative results. The applicant was diagnosed with: Depression with anxiety. The applicant is in the medical evaluation board process for low blood pressure and migraine headaches. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c(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-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. 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 being drugged by the applicant's significant other, at the time, and being used for sexual favors without the applicant's knowledge. The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 11 December 2012, which indicates the applicant was mentally responsible and recognized right from wrong. The applicant had been screened for post-traumatic stress disorder (PTSD) and mild traumatic brain injury (mTBI) with negative results. The applicant was diagnosed with: Depression with anxiety. The applicant was in the medical evaluation board process for low blood pressure and migraine headaches. The MSE was considered by the separation authority. The applicant contends informing the chain of command of the applicant's innocence. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court- martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. 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: Post Traumatic Stress Disorder, Military Sexual Trauma, Traumatic Brain Injury, social phobia, various adjustment disorders, depression with anxiety, anxiety disorder Not Otherwise Specified (NOS), bipolar disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service-connected for Traumatic Brain Injury and has considerable evidence of noteworthy anxiety and depressive symptoms under numerous diagnoses to include Post Traumatic Stress Disorder, various adjustment disorders, anxiety disorder NOS, depression with anxiety, and social phobia while on active duty. Each of these can be subsumed under Post Traumatic Stress Disorder. MST referenced in the VA records. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that there is a typically a presumed nexus between both Traumatic Brain Injury and significant anxiety/depression/ Post Traumatic Stress Disorder and use of illicit substances to self-medicate mood symptoms and significant Traumatic Brain Injury residuals. Evidence suggests the Post Traumatic Stress Disorder and associated symptoms likely predate military service. Under liberal consideration, such conditions provide mitigation for the basis of separation despite the applicant's assertion of being unaware of having taken the substance or having it in applicant's system. The applicant also asserts Military Sexual Trauma associated with this issue and suggests being drugged and sold for sexual favors without the applicant's knowledge and did not find out until later. Although there appears to be limited corroborating evidence for this, the applicant's medical records also reference other Military Sexual Trauma while in Kuwait which would serve to mitigate substance use misconduct at the time of occurrence, as such an offense is associated with self-medication associated with Military Sexual Trauma-related symptoms and distress. (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 Military Sexual Trauma fully outweighed the applicant's illegal drug abuse. b. Response to Contention(s): (1) The applicant contends being drugged by the applicant's significant other, at the time, and being used for sexual favors without the applicant's knowledge. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the applicant's Military Sexual Trauma outweighing the applicant's illegal drug use. Therefore, a discharge upgrade is warranted. (2) The applicant contends informing the chain of command of the applicant's innocence. 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 Military Sexual Trauma fully outweighing the applicant's drug abuse basis for separation. (3) The applicant contends good service, including a combat tour. 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 Military Sexual Trauma fully outweighing the applicant's drug abuse basis for separation. (4) The applicant contends a medical evaluation board was under process at the time of the separation proceedings. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. c. The Board determined the discharge is inequitable based on the Military Sexual Trauma outweighing the applicant's illegal drug abuse. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and leave the reentry eligibility (RE) code at 3 given the service-limiting BH conditions. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Military Sexual Trauma mitigated the applicant's illegal drug use. 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 Board voted to leave the RE-3 code given the presence of service-limiting conditions. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Secretarial Authority / JFF d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, Chapter 15 Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210001662 1