1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is honorable. The applicant requests a change in the narrative reason. The applicant seeks relief contending, in effect, being a combat veteran in the engineer regiment and serving in Afghanistan, which conducted route clearance, and it was an extremely rough deployment. The applicant admits their actions were against rules and regulations of the US Army and were unacceptable. The applicant had a hard time coping with post-deployment stress, and the applicant realizes they let down the team and lost focus on the overall mission. The applicant is requesting an upgrade because the applicant is pursuing a career and is enrolling in school. The applicant desires to have the GI Bill cover the expenses along with other benefits. The applicant has a child and wants to continue the journey by helping others as the applicant did before the wrongdoing. The applicant has cleaned up their act, honored the country, and acknowledged the values that led the applicant to this moment. The applicant has matured and is focusing on everything in front of the applicant. b. Board Type and Decision: In a records review conducted on 25 May 2023, and by a 5- 0 vote, the Board determined the narrative reason for the applicant's discharge is inequitable based on the applicant's TBI mitigating wrongful use of marijuana and the applicant's length and quality of service, to include combat service, outweighing the applicant's disobeying a lawful order. Therefore, the Board directed the issue of a new DD Form 214 changing 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. The Board determined the characterization of service was proper and equitable and voted not to change it. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635-200, Chapter 14-12c (2) / JKK / RE-4 / Honorable b. Date of Discharge: 23 January 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 December 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant used marijuana between 4 October 2013 and 4 November 2013; and, on 18 June 2013, the applicant disobeyed a lawful order from SSG B. G. to not drive a motorcycle until the applicant had completed the Riders Safety Course and had obtained a motorcycle endorsement on the driver's license. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 30 December 2013 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 7 January 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 January 2011 / 4 years b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12N10, Horizontal Construction Specialist / 3 years, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (19 March 2012 - 21 November 2012) f. Awards and Decorations: ACM-CS, ARCOM, NDSM, GWOTSM, ASR, NATOMDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 18 June 2013, for willfully disobeying a lawful order from SSG B. G. on or about 10 May 2013. The punishment consisted of a reduction to E-3, suspended. Record Of Supplementary Action Under Article 15, UCMJ, dated 12 August 2013, reflects the suspended portion of the punishment imposed on 18 June 2013, was vacated for: Article 86, failure to go at the time prescribed to the appointed place of duty. Electronic Copy of DD Form 2624, dated 15 November 2013, reflects the applicant tested positive for THC 31, during an Inspection Other (IO) urinalysis testing, conducted on 4 November 2013. Three Developmental Counseling Forms, for motorcycle safety counseling; operating privately owned motorcycle without proper state endorsement; failure to follow instructions; and lab confirmed positive urinalysis. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, dated 19 November 2013, the examining medical physician noted in the comments section: Is currently seeing BH for insomnia and is diagnosed currently with adjustment disorder. Was evaluated by TBI clinic and cleared after deployment no TBI likely. Report of Mental Status Evaluation, dated 26 November 2013, 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. 5. APPLICANT-PROVIDED EVIDENCE: Online application; DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has matured and is focusing on everything in front of the applicant. 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) 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. (4) 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. (5) 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 non-waiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a non-waiverable 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 contends good service, including a combat tour. The applicant contends having a hard time coping with post deployment stress. The applicant's AMHRR contains Report of Medical History, dated 19 November 2013, the examining medical physician noted in the comments section: Is currently seeing BH for insomnia and is diagnosed currently with adjustment disorder. Was evaluated by TBI clinic and cleared after deployment no TBI likely. The record shows the applicant underwent a mental status evaluation (MSE) on 26 November 2013, which indicates 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. The MSE was considered by the separation authority. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends maturing and focusing on everything in front of the applicant. 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: TBI and Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder and is diagnosed and service connected by the VA for TBI. Service connection establishes that applicant's TBI existed during 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's TBI provides partial medical mitigation given the nexus between TBI and self-medicating with substances; therefore, the applicant's wrongful use of marijuana is mitigated. There is no natural sequelae between TBI, or an Adjustment Disorder, and disobeying a lawful order since neither condition interferes with the ability to distinguish between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, to include the Board Medical Advisor opine, the Board determined that the applicant's TBI mitigated the applicant's wrongful use of marijuana for aforementioned reasons and the applicant's length and quality of service, to include combat, outweighed the applicant's disobeying a lawful order. b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board considered this contention during board proceedings along with the totality of the applicant's service record. (2) The applicant contends having a hard time coping with post deployment stress. The Board determined the contention and voted to upgrade the narrative reason for separation based on the applicant's TBI mitigating the applicant's marijuana use and the applicant's quality and length of service, to include combat service, outweighing the applicant's disobeying a lawful order. (3) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention, but it does not grant relief to gain employment or enhance employment opportunities. (4) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (5) The applicant contends maturing and focusing on everything in front of the applicant. 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 TBI mitigating the applicant's marijuana use and the applicant's length and quality of service, to include combat, outweighing the applicant's disobeying a lawful order. c. The Board determined the applicant's narrative reason for separation is inequitable based on the applicant's TBI mitigating the wrongful use of marijuana and the applicant's length and quality of service, to include combat, outweighing the applicants remaining medically unmitigated misconduct - disobeying a lawful order. Therefore, the Board directed the issue of a new DD Form 214 changing 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. The Board determined the characterization of service was proper and equitable and voted not to change it. 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 determined the discharge is proper and equitable, as the applicant has and Honorable discharge and further relief is unavailable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) based on the applicant's TBI mitigating the wrongful use of marijuana and the applicant's length and quality of service, to include combat, outweighing the applicants remaining medically unmitigated misconduct - disobeying a lawful order. 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: No Change 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 AR20210001897 1