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, cleaning up their life in more ways than one. The applicant did not have the chance to prove oneself or report hazing about the applicant's sexual orientation. The hazing happened between the 1SG and others in the chain of command. The applicant was not allowed to go anywhere to report the information. The 1SG made it clear they would push the applicant's paperwork through faster to get the applicant out of the Army. The applicant currently has a job and is disabled due to an injury while in service. The discharge was for drug use; however, the applicant is currently three years clean and wants another chance. Receiving an honorable discharge would change the applicant's life for the better. The applicant believes they should have been treated like any other Soldier instead of being treated like a "faggot" from the 1SG. b. Board Type and Decision: In a records review conducted on 30 May 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's major depressive disorder diagnosis mitigating the applicant's marijuana and cocaine use basis for separation and other misconduct of AWOL. 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 (Drug Abuse) / AR 635-200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 15 January 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 November 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana between on or about 16 July and 16 August 2012. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 11 December 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 May 2010 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 22 / High School Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13B10, Cannon Crewmember / 2 years, 7 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 26 August 2011, reflects the applicant tested positive for OXCOD 4807; OXMOR 2157; THC 44, during an Inspection Random (IR) urinalysis testing, conducted on 16 August 2011. FG Article 15, dated 9 November 2011, for wrongfully using marijuana (between on or about 15 July 2011 and on or about 15 August 2011) and wrongfully using cocaine (between on or about 20 August 2011 and on or about 23 August 2011). The punishment consisted of a reduction to E-1; forfeiture of $733 pay per month for one month; and extra duty for 45 days. Report of Return of Absentee, dated 11 March 2012, reflects the applicant was AWOL from 23 November 2011 until 11 March 2012. The applicant was apprehended by civil authorities and returned to military control. Report of Return of Absentee, dated 20 November 2012, reflects the applicant was AWOL from 7 September 2012 until 20 November 2012. The applicant was apprehended by civil authorities and returned to military control. i. Lost Time / Mode of Return: 182 days: AWOL, 23 November 2011 - 10 March 2012 / Apprehended by Civil Authorities AWOL, 7 September 2012 - 20 November 2012 / Apprehended by Civil Authorities (This period is not annotated on the DD Form 214 block 29.) j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, dated 12 October 2011, 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 had been screened for PTSD and mTBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The applicant was diagnosed with: Axis I: Adjustment Disorder and Substance Use Disorders. Report of Mental Status Evaluation, dated 27 November 2012, 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 had been screened for PTSD and mTBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The applicant was diagnosed with Adjustment Disorder; Bereavement (per AHLTA records). Report of Medical Assessment, dated 3 August 2012, the examining medical physician noted in the comments section: Anxiety/depression - resolved. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is currently employed and has cleaned up their life in more ways than one and is three years clean from drugs. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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. The applicant contends harassment and discrimination by members of the chain of command due to the applicant's sexual orientation. The applicant did not have a chance to prove oneself and was not allowed to go anywhere to report the information. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant contends the 1SG made it clear they would push the applicant's paperwork through faster to get the applicant discharged. The applicant did not submit any evidence, other than the applicant's statement, to support the contention. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant is currently employed and has cleaned up their life in more ways than one and three years clean from drugs. 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: Major Depressive Disorder. Additionally, the applicant in essence asserts harassment associated with sexual orientation, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service connected for Major Depressive Disorder and has asserted harassment while on active duty. (3) Does the condition or experience excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that applicant has evidence of noteworthy symptoms of depression and anxiety while on active duty diagnosed primarily as adjustment disorder and is service connected for Major Depressive Disorder. Applicant asserts harassment associated with sexual orientation that is at least in part contributory to applicant's disciplinary history. Under liberal consideration guidelines, the presence of depression mitigates the primary offense leading to separation (cannabis use) due to a nexus between depression and self-medication of mood symptoms (which given available history appear to be pre- existing). Other disciplinary issues in record include other positive UA which would also be mitigated by depression (due to nexus with self-medication of symptoms), and AWOL which under liberal consideration would be mitigated by both depression (lack of motivation, disengagement from responsibilities, anergia associated with depression) and avoidance associated with applicant's asserted experience of harassment in applicant's unit. (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 major depressive disorder outweighed the marijuana and cocaine use basis for separation, and other misconduct of AWOL for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends harassment and discrimination by members of the chain of command due to the applicant's sexual orientation. The applicant did not have a chance to prove oneself and was not allowed to go anywhere to report the information. The Board considered this contention and determined that there is insufficient evidence to support the applicant was harassed and discriminated against by the chain of command due to applicant's sexual orientation. Ultimately the Board voted to upgrade the applicant's discharge due to the applicant's major depressive disorder mitigating applicant's marijuana and cocaine use basis for separation, and other misconduct of AWOL. (2) The applicant contends the 1SG made it clear they would push the applicant's paperwork through faster to get the applicant discharged. The Board considered this contention and determined that there is insufficient evidence to support the 1SG made it clear they would push the applicant's paperwork through faster to get the applicant discharged. Ultimately the Board voted to upgrade the applicant's discharge due to the applicant's major depressive disorder mitigating applicant's marijuana and cocaine use basis for separation, and other misconduct of AWOL. (3) The applicant is currently employed and has cleaned up their life in more ways than one and is currently three years clean from drugs. 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 - fully outweighing the applicant's marijuana and cocaine use basis for separation, and other misconduct of AWOL. c. The Board determined the discharge is inequitable based on the applicant's major depressive disorder diagnosis outweighing the applicant's marijuana and cocaine use basis for separation and other misconduct of AWOL. 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. 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 the applicant's major depressive disorder mitigated the applicant's misconduct of marijuana and cocaine use basis for separation, and other misconduct of AWOL. 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 AR20210001893 1