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 court martial was unjustified, and a 30-day confinement sentence was served in prison for an action the applicant states they did not commit (use of controlled item). After testing positive on the urinalysis, the applicant asked to be assigned a lawyer, which was denied; was questioned and interrogated by CID and private investigators; and took a polygraph test, which the applicant passed. The applicant pleaded not guilty through the entire court martial. The applicant states the roommate spiked drinks at a birthday party as a prank. The applicant contends no action was taken against the other Soldier who failed urinalysis. b. Board Type and Decision: In a records review conducted on 13 July 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD outweighing the basis for separation - positive UA for cocaine. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable 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, and the reentry code to 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 (Abuse of Illegal Drugs) / AR 635-200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 7 November 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 October 2005 (2) Basis for Separation: Under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense, the applicant was informed of the following reasons: Misconduct-abuse of illegal drugs. The applicant tested positive for cocaine, a controlled substance, on 23 May 2005. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 6 October 2005 (5) Administrative Separation Board: On 6 October 2005, the applicant unconditionally waived consideration of the case before an administrative separation board. Separation Decision Date / Characterization: On 19 October 2005 the separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. / General (Under Honorable Conditions), 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 March 2004 / 2 years b. Age at Enlistment / Education / GT Score: 25 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 91W10, Health Care Specialist / 9 years, 9 days d. Prior Service / Characterizations: RA, 15 October 1996 - 14 December 1998 / HD RA, 15 December 1998 - 28 January 2001 / HD RA, 29 January 2001 - 21 March 2004 / HD e. Overseas Service / Combat Service: Germany, Korea, SWA / Iraq (28 February 2003 - 23 August 2003) f. Awards and Decorations: AAM-4, AGCM, NDSM, KDSM, NCOPDR, ASR, OSR-2, GWOTSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 31 May 2005, reflects the applicant tested positive for BZE 120, during an Inspection Unit (IU) urinalysis testing, conducted on 23 May 2005. Record of Trial by Summary Court-Martial, reflects the applicant was charged with: Two specifications of violation of Article 107: Plea Guilty; Finding Not Guilty One specifications of violation of Article 112a: Plea Guilty; Finding Guilty One specifications of violation of Article 12a: Plea Guilty; Finding Not Guilty The sentenced adjudged: Confinement for 15 days. CID Report of Investigation, dated 20 July 2005, reflects the applicant admitted to lying on first sworn statement on 6 June 2005, by denying the use of cocaine while in the military. The applicant was the subject of an investigation for wrongful use of cocaine and making a false sworn statement. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "PDY" to "CMA," effective 21 September 2005; and From "CMA" to "PDY," effective 5 October 2005. i. Lost Time / Mode of Return: 14 days (CMA, 21 September 2005 - 4 October 2005) / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, dated 23 June 2005, 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 was diagnosed with: Axis I: Substance Related Disorder NOS; Axis II: No Diagnosis. There is no evidence of any mental disease or defect, which would warrant a disposition through medical/psychiatric channels. The applicant reports no suicidal or homicidal thoughts currently. The applicant is cleared for any administrative action deemed appropriate by command. Report of Medical History, dated 24 June 2005, the examining medical physician noted in the comments section: Currently in the ASAP program. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and VA Summary of benefits letter. 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. 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. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 28, Narrative Reason for Separation as "Misconduct., Abuse of Illegal drugs The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c. Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason of Misconduct (Serious Offense) and a SPD Code of JKQ. The applicant contends the court martial was unjustified; and a 30-day confinement sentence was served in prison for an action the applicant states they did not commit (use of control item). The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The AMHRR reflects the applicant was found guilty by a Summary Court Martial and tested positive for BZE 120, during an Inspection Unit (IU) urinalysis testing, conducted on 23 May 2005. The applicant contends after testing positive on the urinalysis, the applicant asked to be assigned a lawyer, which was denied, and then questioned, and interrogated by CID and private investigators. The evidence of the record reflects the applicant was assigned 1LT M., as defense counsel. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends no action was taken against the other Soldier who failed urinalysis. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the case. 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. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed and service connected by the VA for PTSD. Service connection establishes that applicant's PTSD existed during military service. (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 is diagnosed and service connected by the VA for PTSD which mitigates the cocaine use that led to his separation given the nexus between PTSD and self-medicating with substances. (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 PTSD outweighed the basis for separation - positive UA for cocaine - for the aforementioned reason. b. Response to Contention(s): (1) The applicant contends court martial was unjustified, and a 30-day confinement sentence was served in prison for an action the applicant states did not commit (use of control item). 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 outweighing the applicant's basis for separation. (2) The applicant contends after testing positive on the urinalysis, the applicant asked to be assigned a lawyer, which was denied, was questioned, and interrogated by CID and private investigators. 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 outweighing the applicant's basis for separation. (3) The applicant contends no action was taken against the other Soldier who failed urinalysis. 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 outweighing the applicant's basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD outweighing the basis for separation - positive UA for cocaine. Thus, warranting relief. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD outweighed the basis for separation - positive UA for cocaine. Thus the prior characterization is no longer appropriate. (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 Board voted to change the RE code 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: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210001817 1