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 command and medical staff refused treatment of Post Traumatic Stress Disorder/Traumatic Brain Injury until after the applicant received a positive urinalysis test. b. Board Type and Decision: In a records review conducted on 11 July 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the applicant's PTSD and TBI (with elements suggestive of psychotic features) diagnoses, post-service accomplishments and compassion for the severity of his mental illness outweighed the multiple marijuana use, FTR, AWOL, failure to obey a lawful order, communicating a threat and failure to comply with a required UA. 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. The Board determined the reentry eligibility (RE) code was proper and equitable and voted not to change it based on applicant's PTSD and TBI diagnoses warranting consideration prior to reentry of military service, the reentry eligibility (RE) code will remain 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 (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 3 February 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 December 2005 and 23 January 2006. (2) Basis for Separation: The applicant was informed of the following reasons: Possession of marijuana on 2 October 2005; Testing positive on a urinalysis for marijuana on 9 February 2005, 5 October 2005 and 16 November 2005; Communicating a threat on 26 April 2005; Failing to attend a Command Directed Urinalysis on 28 August 2005; and, Failure to obey a lawful order by not signing in at the CQ desk on 16 November 2005 at 1800 hours. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 16 December 2005, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: On 20 January 2006, the separation authority reviewed the chapter action and directed the applicant be processed under administrative separation provisions of Chapter 14-12c, Commission of a Serious Offense, IAW paragraph 1-33, AR 635-200. Although Medical Evaluation Board findings indicated the case of the applicant should be referred to a Physical Evaluation Board, the separation authority found the applicant's medical condition is not a direct or substantial contributing cause of the misconduct and the administrative separation under chapter 14-12c, Commission of a Serious Offense, was appropriate in this case. The characterization was not specified in the memorandum. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 November 2003 / 3 years b. Age at Enlistment / Education / GT Score: 23 / High School Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 63M10, Bradley Fighting Vehicle System Maintainer / 4 years, 8 months, 3 days d. Prior Service / Characterizations: RA, 31 May 2001 - 3 November 2003 / HD e. Overseas Service / Combat Service: SWA / Kuwait (30 April 2002 - 31 October 2002); Kuwait / Iraq (5 March 2003 - 3 June 2003; 21 March 2005 - 24 May 2005) f. Awards and Decorations: ARCOM, AGCM, NDSM, AFEM, GWOTSM, ASR, ICM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 14 May 2005, for wrongfully using marijuana on or about 1 February 2005 and 9 February 2005; being disrespectful in deportment toward SGT O. on or about 25 April 2005; and being disrespectful in language toward SGT O. on or about 25 April 2005. The punishment consisted of a reduction to E-1; forfeiture of $500 pay per month for two months; and extra duty and restriction for 45 days. MPR# 01783-2005-MPC056, dated 3 October 2005, investigation revealed while conducting gate procedures, V. W. smelled a suspicious odor emitting from a Ford Mustang belonging to the applicant. Military dog completed a search of the vehicle which met with positive results for a green leafy substance on the rear passenger side. The substance was tested and was positive for THC. The applicant was arrested and charged with Possession of Marijuana (Art #112a UCMJ) (On Post) and Possession of Drug Paraphernalia (Title 18, 21 USC 863, USC). Electronic Copy of DD Form 2624, dated 12 October 2005, reflects the applicant tested positive for THC, during an Inspection Unit (IU) urinalysis testing, conducted on 4 October 2005. Three Electronic Copies of DD Form 2624, dated 9 February 2005, 5 October 2005 and 16 November 2005, reflects the applicant tested positive for THC, during a Probable Cause (PO) urinalysis testing. Two Memorandums for Commander, dated 4 and 10 November 2005, reflect the applicant was enrolled in the Army Substance Abuse Program counseling and failed to report for group counseling on 2 and 10 November 2005. Several Developmental Counseling Forms, for verbal communication of a threat; interaction with SPC S. B.; prohibition of having a weapon or ammunition; prohibition of unescorted travel on FOB Striker; positive urinalysis; pass privileges; two failure to be at appointed place of duty; two disobeying a superior commissioned officer; two disobeying a senior noncommissioned officer; violation of pass revocation; absence without leave; assaulting of willfully disobeying a superior commissioned officer; disobeying a noncommissioned officer; failure to obey order or regulation; failure to attend command direct urinalysis; and, notification of pending UCMJ action or involuntary separation under chapter 14-12c. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Commander's Performance Statement, dated 15 July 2005; reflects the applicant had been diagnosed with PTSD since December 2004. It was noted the applicant had a consultation with Mental Health, dated 22 August 2005, which reflects Axis I: PTSD, chronic. They recommended a permanent S4 profile. It was believed the Axis I psychiatric condition was unfitting for military duty and recommended the applicant's case be forwarded to the physical evaluation board. (2) AMHRR Listed: Report of Medical Examination, dated 13 July 2005, the examining medical physician noted in the comments section: PTSD Medical Evaluation Board Proceedings, dated 22 September 2005, reflect the following diagnosis: Chronic Post-Traumatic Stress Disorder (PTSD). Physical Profile (Permanent), dated 23 September 2005, reflects the applicant had the following medical conditions: Chronic Post-Traumatic Stress Disorder. Report of Mental Status Evaluation, dated December 2005, does not belong to this applicant. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; Commander's Performance Statement; VA Form 10-2577F; DA Form 3349; two third-party letters. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is now drug and alcohol free and has overcome many obstacles to hold a stable life for raising three children. 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 waivable and nonwaivable 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 waivable. 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 the command and medical staff refused treatment of Post-Traumatic Stress Disorder/Traumatic Brain Injury until after a positive urinalysis testing. The applicant provided a copy of Commander's Performance Statement, dated 15 July 2005, which reflects the applicant had been diagnosed with PTSD since December 2004. It was noted the applicant had a consultation with Mental Health, dated 22 August 2005, which reflects Axis I: PTSD, chronic. They recommended a permanent S4 profile. It was believed the Axis I psychiatric condition was unfitting for military duty and recommended the applicant's case be forwarded to the physical evaluation board. The applicant's AMHRR contains documentation which supports a diagnosis of in-service PTSD. The AMHRR shows Report of Medical Examination, dated 13 July 2005, the examining medical physician noted in the comments section: PTSD. Medical Evaluation Board Proceedings, dated 22 September 2005, reflects the following diagnosis: Chronic Post-Traumatic Stress Disorder (PTSD). Physical Profile (Permanent), dated 23 September 2005, reflects the applicant had the following medical conditions: Chronic Post- Traumatic Stress Disorder. The Report of Mental Status Evaluation, dated December 2005, included in the case separation file does not belong to this applicant. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct while serving in the Army and the spouse speaks about how the applicant changed after returning from deployment. The applicant is now drug and alcohol free and has overcome many obstacles to hold a stable life for raising three children. The Army Discharge Review Board is authorized to consider post- service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD and TBI clearly evident at time of service and established through service connection, with subsequent diagnoses noted in record to include major depressive disorder, panic disorder, anxiety disorder, psychosis, and schizophrenia. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found clear evidence of PTSD and TBI present at time of service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has evidence of PTSD as diagnosed on active duty and now service connected, in addition to TBI (with subsequent diagnoses of mild neurocognitive disorder) for which he is service connected. There are numerous other diagnoses noted in his VA records to include psychosis and schizophrenia, but the advisor does not find evidence that such diagnoses were applicable at the time of service. The available evidence supports the presence of PTSD in service although perhaps with elements suggestive of psychotic features (eg paranoia, vague AH, or visual distortions associated with mood dysregulation) in addition to TBI at the time of service. The presence of TBI and PTSD result in mitigation of some of the behaviors associated with his discharge. There is a nexus between both PTSD and TBI with illicit substance use (and possession) given the association of these conditions with self-medication of associated symptoms/distress. PTSD is associated with avoidance behaviors and at times disrespect/distrust and failure to comply with authority figures for what might be perceived as minor or trivial expectations, and as such the condition mitigates failure to obey order by not signing in to CQ and other incidents of disobeying superiors documented in record. TBI may at times result in impulsive behavior, although evidence does not support that TBI of the nature sustained by the applicant (or PTSD) mitigates communicating a threat. Neither PTSD nor a TBI of the nature documented in applicant's records would impair one's ability to differentiate right from wrong and ultimately, despite mitigation for substance use, such conditions are not determined to mitigate a failure to comply with a required UA. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant's PTSD and TBI outweighed the basis for applicant's separation - communicating a threat and failure to comply with a required UA - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends refusal by the command and medical staff for treatment of Post-Traumatic Stress Disorder/Traumatic Brain Injury until after positive urinalysis testing. The Board considered this contention and determined there is insufficient evidence to support the command and medical staff refused applicant treatment for PTSD/TBI until after positive urinalysis testing. However, the Board voted to upgrade the applicant's discharge based on applicant's length and quality of service, to include combat service, the applicant's PTSD and TBI diagnoses and post-service accomplishments outweighing the remaining unmitigated misconduct of communicating a threat and failure to comply with a required UA. (2) The applicant is now drug and alcohol free and has overcome many obstacles to hold a stable life for raising three children. The Board considered this contention and determined that the applicant being drug and alcohols free, holding a stable life for raising children do not outweigh the misconduct, however the Board voted to upgrade the applicant's discharge based on applicant's length and quality of service, to include combat service, the applicant's PTSD and TBI diagnoses and post-service accomplishments outweighing the remaining unmitigated misconduct of communicating a threat and failure to comply with a required UA. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the applicant's PTSD and TBI with elements suggestive of psychotic features diagnoses and post-service accomplishments outweighing the multiple marijuana use, FTR, AWOL, failure to obey a lawful order, communicating a threat and failure to comply with a required UA. 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. The Board determined the reentry eligibility (RE) code was proper and equitable and voted not to change it based on applicant's PTSD and TBI diagnoses warranting consideration prior to reentry of military service, the reentry eligibility (RE) code will remain RE-3. However, the applicant may request a personal appearance hearing to address further issues before the Board. 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 length and quality of service, to include combat service, the applicant's PTSD and TBI with elements suggestive of psychotic features diagnoses, post-service accomplishments and compassion for the severity of his mental illness outweighed the multiple marijuana use, FTR, AWOL, failure to obey a lawful order, communicating a threat and failure to comply with a required UA. 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 RE code will not change, based on applicant's PTSD and TBI diagnoses warranting consideration prior to reentry of military service, the reentry eligibility (RE) code will remain 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: No Change a. 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 AR20210001839 1