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 honorable. The applicant requests a change to the narrative reason. The applicant seeks relief contending, in effect, because of being arrested for possession of a controlled substance while awaiting a medical discharge for PTSD and TBI, and despite the medical board rating, the applicant was discharged with a general (under honorable conditions) character of service. The drug use was influenced by PTSD and TBI. The applicant believes in deserving an honorable discharge because of injuries sustained by an explosion while serving in Iraq, which resulted in PTSD and TBI. Although the applicant underwent two years of EMDR (Eye Movement Desensitization and Reprocessing) and cognitive therapies, the applicant is still having difficulty coping. The applicant believes to have been judged harshly because of using drugs to cope with the PTSD and TBI. Until returning from deployment, the applicant was a top- notch Soldier. The applicant should not be denied an honorable discharge because of a few months of bad behavior caused by PTSD and TBI. The applicant was also instructed the reason for discharge should not be changed to misconduct (drug abuse) at the out-process. Board Type and Decision: In a records review conducted on 10 August 2023, and by a 5-0 vote, the Board determined the narrative reason for the applicant's separation is now inequitable based on the applicant's PTSD and TBI outweighing the applicant's illegal drug use basis of separation. Therefore, the Board directed the issue of a new DD Form 214 with a change to the separation authority to AR 635-200, paragraph 14-12a, a change to the narrative reason for separation to Misconduct (Minor Infractions), and a change of the separation code to JKN. The Board determined the RE code was 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 / Honorable b. Date of Discharge: 8 March 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 January 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 1 December 2009 and 24 November 2009, the applicant was incarcerated for being in contempt of court while appearing in Drug Court at the Colorado Springs Municipal Courthouse; On 28 August 2009, the applicant tested positive for the use of amphetamines and codeine; On 23 June 2009, the applicant was arrested by the Colorado Springs Police Department for purchasing heroin; On 9 June 2009, the applicant tested positive for heroin and marijuana; On 29 December 2008, the applicant was in possession of an empty bottle of alcohol in violation of Warrior Transition Unit policy; and On 24 November 2008, the applicant tested positive for the use of heroin. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 January 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 February 2010 / General (Under Honorable Conditions) / The separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14-12c, Misconduct (Serious Offense). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 October 2007 / 4 years b. Age at Enlistment / Education / GT Score: 22 / GED / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 7 months d. Prior Service / Characterizations: RA, 21 June 2006 - 28 October 2007 / HD e. Overseas Service / Combat Service: SWA / Iraq (4 February 2007 - 13 December 2007) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ICM-CS, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Developmental Counseling Forms for being incarcerated and being processed for UCMJ and separation action, and several pages 2 of the counseling forms do not reflect the reasons. Two Army Substance Abuse Program (ASAP) Enrollment forms, 16 December 2008, and 13 January 2009, reflects the applicant was command-referred in the ASAP. Electronic Copy of DD Form 2624, 10 December 2008, reflects the applicant tested positive for 6AM 130 (Heroine) during an Inspection Unit (IU) urinalysis testing, conducted on 24 November 2008. Memorandum, 3 July 2009, reflects restrictions of pass and POV privileges and from consuming alcohol or using illegal drugs, including signing in with the Charge of Quarters every two hours, remaining in uniform during duty hours, and not leaving the unit area were imposed on the applicant by the unit commander. Electronic Copy of DD Form 2624, 6 July 2009, reflects the applicant tested positive for 6AM 7244 (Heroine), COD 5605 (Codeine), MOR LOL (Morphine), and THC 30 (marijuana), during a Rehabilitation Testing (RO) urinalysis testing, conducted on 9 June 2009. FG Article 15, 2 September 2009, for wrongfully using marijuana (between 10 May and 9 June 2009) and wrongfully using heroin (between 7 and 9 June 2009). The punishment consisted of a forfeiture of $699 pay per month for two months; extra duty for 45 days; restriction for 14 days; and an oral reprimand. Electronic Copy of DD Form 2624, 14 September 2009, reflects the applicant tested positive for COD 22250 (Codeine) and DAMP 4717 (D-Amphetamine), during a Rehabilitation Testing (RO) urinalysis testing, conducted on 28 August 2009. i. Lost Time / Mode of Return: 48 days: CCA, 24 June 2009 - 2 July 2009 for 9 days / NIF CCA, 24 November 2009 - 8 December 2009 / Released from Confinement CCA, 3 February 2010 - 26 February 2010 / NIF j. Behavioral Health Condition(s): (1) Applicant provided: Medical Evaluation Board (MEB) Narrative Summary, 10 September 2009, reflecting diagnoses of PTSD and residuals of TBI. Psychiatric Medical Evaluation Board - Narrative Summary, 2 March 2009, reflecting on Axis I diagnosis of PTSD. Physical Evaluation Board (PEB) Proceedings, 17 November 2009, reflecting on PTSD diagnosis and 50 percent disability rating. (2) AMHRR Listed: Reports of Medical History, 14 August 2009 and 9 March 2009, the applicant noted having PTSD and anxiety attacks from nightmares. The examining medical physician noted in the comments section: Applicant reports nightmares, anxiety, concerns about the future, history of heroin and marijuana use, and use of cocaine and oxycodone preceding military service. The applicant has been hospitalized and treated for substance abuse on multiple occasions. Physical Profile, 10 September 2009, reflects the applicant had the following medical conditions: PTSD and TBI. Medical Evaluation Board Proceedings and its Narrative Summary, 11 September 2009, reflect the following diagnosis: PTSD and TBI. Physical Evaluation Board (PEB) Proceedings, 17 November 2009, provides disability description of PTSD, findings of the applicant being physically unfit, a recommended combined rating of 50 percent, and the disability resulted from a combat-related injury. Report of Mental Status Evaluation, 16 December 2009, reflects the applicant was not cleared for an administrative separation. The applicant could understand and participate in administrative proceedings and was mentally responsible; and failed to meet the medical retention requirements. An MEB was returned from PEB. The applicant had deployed and had been diagnosed with PTSD and required definitive access to mental health services. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and listed attachments. 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 600-85, paragraph 10-12a defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10-13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy includes: Results of command-directed drug or alcohol testing that are inadmissible under the MRE; Results of a drug or alcohol test collected solely as part of a safety mishap investigation undertaken for accident analysis and the development of countermeasures; Information concerning drug or alcohol abuse or possession of drugs incidental to personal use, including the results of a drug or alcohol test, collected as a result of a Soldier's emergency medical care solely for an actual or possible alcohol or other drug overdose; A Soldier's self-referral to BH for SUD treatment; Admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to treatment and provided by Soldiers as part of their initial entry into SUD treatment; Drug or alcohol test results, if the Soldier voluntarily submits to a DoD or Army SUD treatment before the Soldier has received an order to submit for a lawful drug or alcohol test; and, the results of a drug or alcohol test administered solely as a required part of a DoD or Army SUD treatment program. e. 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 3-8a states a Soldier is entitled to an honorable characterization of service if limited-use evidence (see AR 600-85) is initially introduced by the Government in the discharge proceedings, and the discharge is based upon those proceedings. The separation authority will consult with the servicing Judge Advocate in cases involving limited use evidence. (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. f. 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). g. 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 a change in the narrative reason. The applicant's separation packet includes two electronic DD Forms 2624 (Specimen Custody Document for Drug Testing), reflecting the urinalyses tests were coded "RO," which indicates "Rehabilitation Testing." The Rehabilitation Tests were limited use information as defined in AR 600-85. Use of these information mandate award of an honorable discharge. The applicant contends being arrested for possession of a controlled substance while awaiting a medical discharge for PTSD and TBI, and despite the medical board rating, the applicant was discharged for drug use, which was influenced by PTSD and TBI. The applicant's AMHRR contains documentation that supports a diagnosis of in-service PTSD and TBI. 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 an administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. The record shows the applicant underwent a mental status evaluation (MSE) on 16 December 2009, which indicates the applicant was mentally responsible. The MSE and the MEB findings were considered by the separation authority. The applicant contends having been judged harshly because of using drugs to cope with the PTSD and TBI. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being a top-notch Soldier and should not have been denied an honorable discharge because of a few months of bad behavior caused by PTSD and TBI. 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 and TBI. (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, and subsequently service connected by the VA, with combat-related PTSD and TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant's combat-related PTSD and TBI mitigate the misconduct that led to applicant's separation. Given the nexus between PTSD/TBI and self-medicating with substances, the applicant's PTSD/TBI likely contributed to his use of substances including alcohol, heroin, marijuana, amphetamines, and codeine. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, to include the Board Medical Advisor opine, the Board determined that the applicant's PTSD and TBI outweighed the applicant's illegal drug abuse. b. Response to Contention(s): (1) The applicant contends having been judged harshly because of using drugs to cope with the PTSD and TBI. The Board liberally considered this contention and determined that the applicant's PTSD and TBI outweighed the applicant's illegal drug abuse. Therefore, a discharge upgrade is warranted. (2) The applicant contends being arrested for possession of a controlled substance while awaiting a medical discharge for PTSD and TBI, and despite the medical board rating, the applicant was discharged for drug use, which was influenced by PTSD and TBI. The Board considered this contention during proceedings but ultimately did not make a determination due to being granted based on the applicant's PTSD and TBI fully outweighing the applicant's drug abuse basis for separation. (3) The applicant contends being a top-notch Soldier and should not have been denied an honorable discharge because of a few months of bad behavior caused by PTSD and TBI. The Board considered this contention during proceedings but ultimately did not make a determination due to being granted based on the applicant's PTSD and TBI fully outweighing the applicant's drug abuse basis for separation. c. The Board determined the narrative reason for the applicant's separation is now inequitable based on the applicant's PTSD and TBI outweighing the applicant's illegal drug use basis of separation. Therefore, the Board directed the issue of a new DD Form 214 with a change to the separation authority to AR 635-200, paragraph 14-12a, a change to the narrative reason for separation to Misconduct (Minor Infractions), and a change of the separation code to JKN. The Board determined the RE code was proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because the current characterization of service is honorable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) because the applicant's Post Traumatic Stress Disorder and Traumatic Brain Injury outweighed the applicant's illegal drug use basis of separation, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted not to change the RE-code based off the Board's Medical Advisor recommendation and the extent of the applicant's PTSD diagnosis. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: No Change c. Change Reason / SPD code to: Misconduct (Misconduct Infractions) / JKN d. Change RE Code to: No Change 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 AR20210001710 1