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, being a Soldier who served well, and the discharge was not warranted and should not have been upheld. The applicant contends along with the service-connected disability, the applicant should have been able to show more evidence. b. Board Type and Decision: In a records review conducted on 22 June 2023, and by a 3- 2 vote, the Board determined the characterization is inequitable based on the applicant's length of service and the applicant's mood disorder partially mitigating the applicant's misconduct and the unmitigated misconduct is outweighed by the applicant's length of service and the length of time since discharge., as well as time since discharge. Therefore, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to Honorable, but the Board voted not to change the applicant's reason for discharge, accompanying SPD code, and RE code. 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 / AR 635-200, Chapter 14- 12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 8 July 2003 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 June 2003 (2) Basis for Separation: Pursuant to the provisions of AR 635-200, Chapter 14 section II, paragraph 14-9, Civil court conviction in foreign countries, the applicant was informed of the following reasons: Civil Conviction. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 16 June 2003 (5) Administrative Separation Board: On 17 June 2006, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: On 26 June 2003, the separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14 Section II paragraph 14-9, Civil court conviction in foreign countries. / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 July 2000 / 4 years b. Age at Enlistment / Education / GT Score: 17 / High School Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31L10, Wire System Installer / 2 years, 11 months, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 17 December 2002, reflects the applicant tested positive for THC 63 (marijuana), during an Inspection Probable Cause (PO) urinalysis testing, conducted on 27 November 2002. CID Report of Investigation - Final, dated 14 January 2003, reflects an investigation established probable cause to believe the applicant committed the offense of possession of a Controlled Substance when the applicant purchased Marijuana, a Schedule I Controlled Substance under the Controlled Substance Act, from a Korean National Police (KNP) Source for $25.00. Military Police Report, dated 29 January 2003, reflects the applicant was apprehended for Traffic accident resulting in damage to government property; USFK 190-1 D-16 (D) Inattentive Driving; Failure to report involvement in a traffic accident; Operating a POV without an operators permit; Allowing an unlicensed person to operate a POV; Perjury, False swearing, False official statement; Drunken driving (on post). General Officer Memorandum of Reprimand, dated 26 February 2003, reflects, On 25 January 2003, the applicant operated a vehicle while intoxicated. A blood alcohol test showed a blood alcohol content of.120 percent. In addition to operating a vehicle while intoxicated the applicant also operated a privately owned vehicle without an operator's permit, the applicant failed to report involvement in a traffic accident and was inattentive while driving which resulted in striking a force protection barricade. Memorandum for Commander dated 12 June 2003, reflects Field Grade Article 15; Article 112a for wrongful use of marijuana; Reduction to Private E-1, Forfeiture of $521 per month for two months, 45 days extra duty and 45 days restriction. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, dated 15 January 2003, 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: Cannabis abuse by history. This Soldier was evaluated at the Commander's request at the US Army Community Hospital, Mental Health Clinic, on 15 January 2003, for a Chapter 14 evaluation. The applicant refused to answer questions about Cannabis use do to wanting to get legal advice first. This individual meets the retention standards prescribed in Chapter 3, AR 40-501, and there is no psychiatric disease or defect, which better warrants disposition through medical channels. 5. APPLICANT-PROVIDED EVIDENCE: 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 prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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. Based on the applicant's AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, "AR 635-200, PARA 14-12C"; block 26, "JKQ." The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, Section II, paragraph 14-9. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Civil Conviction)," and the separation code is "JKB." The applicant contends being a Soldier who served well, and the discharge was not warranted and should not have been upheld. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken which is tantamount to a finding of guilty. The AMHRR reflects CID Report of Investigation - Final, dated 14 January 2003, reflects an investigation established probable cause to believe the applicant committed the offense of possession of a Controlled Substance when the applicant purchased Marijuana, a Schedule I Controlled Substance under the Controlled Substance Act, from a Korean National Police (KNP) Source for $25. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The results of POK Trial dated 28 Apr 03 reflects that the applicant was found guilty in Seoul District Court on violation of Law on Control of Narcotics (marijuana). Recommend replacing this evidence with the CID report as it supports the basis for separation - civilian conviction. The applicant contends being service connected with a disability. The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The AMHRR reflects a Report of Mental Status Evaluation, dated 15 January 2003, 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: Cannabis abuse by history. The available medical evidence in the AMHRR is void of any indication the applicant was suffering from a disabling medical or mental condition during the discharge processing, warranting separation processing through medical channels. The MSE was considered by the separation authority. 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: Mood (Disorder/Depression, Not Otherwise Specified). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant Mood Disorder existed during the applicant's military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant's Mood Disorder mitigates the applicant's civilian conviction for drug offenses given the nexus between a Mood Disorder and self-medicating with substances. However, the Board Medical Advisor opined that the applicant's mood disorder does not mitigated the applicant's collateral misconduct associated with the applicant's civilian conviction considered by the Separation Authority for purposes of characterization of service at the time of separation (inattentive driving, failure to report involvement in traffic accident, operating without a license, perjury, false swearing, and false official statement) as there is no nexus between the applicant's mood disorder and these offenses. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, and determined that while the applicant's Mood Disorder mitigates the applicant's drug offenses that was the basis of the applicant's civilian conviction separation, the applicant's mood disorder does not outweigh the applicant's collateral misconduct considered by the separation authority for purposes of characterization of service - inattentive driving, failure to report involvement in traffic accident, operating without a license, perjury, false swearing, and false official statement. b. Response to Contention(s): (1) The applicant contends being a Soldier who served well, and the discharge was not warranted and should not have been upheld. The Board considered this contention and determined a discharge upgrade is warranted based on the applicant's mood disorder partially mitigating the applicant's drug offenses, the applicant's length of service, and the length of time since the applicant was discharged. The Board considered this contention and determined a discharge upgrade is warranted based on the applicant's mood disorder partially mitigating the applicant's drug offenses, the applicant's length of service, and the length of time since the applicant was discharged. (2) The applicant contends being service connected with a disability. The Board considered this contention, but ultimately did not address the contention as the Board determined a discharge upgrade was warranted based on the applicant's mood disorder partially mitigating the applicant's drug offenses and the unmitigated misconduct is outweighed by the applicant's length of service and the length of time since discharge., as well as time since discharge. c. The Board determined the characterization is inequitable based on the applicant's length of service, partially mitigating mood disorder and time passed since misconduct. Therefore, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to Honorable. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's mood disorder partially mitigated the applicant's misconduct of procession and use of marijuana and the unmitigated misconduct is outweighed by the applicant's length of service and the length of time since discharge moved the Board to determine relief was warranted. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: No Change 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 AR20210001827 1