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 discharged for drug abuse, although the applicant states committing no such offense. The applicant contends not failing a urinalysis test and no drugs were at the applicant’s home. The applicant contends experiencing a family hardship due to being unable to perform duties as a single parent because the spouse was caught with drugs and ammo and began court martial proceedings while the applicant was going through a divorce and custody proceeding. b. Board Type and Decision: In a records review conducted on 30 May 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 5 October 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 September 2011 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used Synthetic Cannabinoids between on or about 1 March and 9 July 2011. Additionally, the applicant stole three smoke grenades, a white star cluster and 270 rounds of 5.56 ball ammunition between 10 January and 13 July 2011. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 19 September 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Illegible / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 February 2010 / 3 years b. Age at Enlistment / Education / GT Score: 17 / GED / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 4 months, 7 days d. Prior Service / Characterizations: RA, 12 June 2008 – 19 February 2010 / HD e. Overseas Service / Combat Service: SWA / Iraq (15 October 2009 – 1 August 2010) f. Awards and Decorations: AAM, NDSM, GWOTSM, ICM-CS, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report Investigation Final, dated 19 July 2011, reflects an investigation established probable cause to believe the applicant committed the offense of wrongful use of Spice when admitting to smoking Spice. The applicant was interviewed and admitted to smoking Spice on 9 July 2011, and further admitted two of the three pipes found in residence belonged to the applicant. Report of Mental Status Evaluation, dated 25 July 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; requires further examination or testing to finalized diagnosis and recommendation. The service member has been screened for Post-Traumatic Stress Disorder and mild Traumatic Brain Injury. All positive screens require a comprehensive evaluation. Results of the screening are as follow: Post Traumatic Stress Disorder Screening: 63. This SM was seen at the commander’s request on 25 July 2011, for a mental status evaluation IAW AR 635-200 for Chapter proceedings. This SM was seen at Community Mental Health Services, Fort Irwin, by this SW provider. Based on this assessment, the Soldier can understand and participate in the administrative proceedings; however, in view of relevant clinical findings, the applicant must be referred for further/additional assessment(s), as indicated in the section VIII. Limitations of Confidentiality were reviewed as appropriate; the Soldier’s understanding as verified verbally and in writing. The Command is responsible for safeguarding this sensitive behavioral health assessment data. FG Article 15, dated 6 September 2011, for between on or about 10 January and on or about 13 July 2011, steal three smoke grenades, one white star cluster, and 270 rounds of 5.56 ball ammunition. on or about 1 March 2011 and on or about 9 July 2011, wrongfully use Synthetic Cannabinoids a Schedule I controlled substance. The punishment consisted of a reduction to E-1; forfeiture of $733 pay per month for two months and extra duty and restriction for 45 days; oral reprimand. Two Developmental Counseling Form, for domestic dispute with spouse and drugs. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 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(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 the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Drug Abuse),” and the separation code is “JKK.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends being discharged for drug abuse, although the applicant states committing no such offense. The applicant contends not failing a urinalysis test and no drugs were at the applicant’s home. The CID Report of Investigation, Final dated 19 July 2011, reflects an investigation established probable cause to believe the applicant committed the offense of wrongful use of Spice when admitting to smoking Spice. The applicant was interviewed and admitted to smoking Spice on 9 July 2011, and further admitted two of the three pipes found in the residence belonged to the applicant. The applicant contends experiencing family a hardship due to being unable to perform duties as a single parent because the spouse was caught with drugs and ammo and began court martial proceedings while the applicant was going through a divorce and custody proceeding. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant is service connected for PTSD, with active duty medical records also compelling for the diagnosis although not formally made. (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 is service-connected for PTSD, and the advisor also appreciates compelling evidence supporting the diagnosis on active duty although formal diagnosis not in records. Presence of PTSD results in partial mitigation of the basis of separation; the natural history of the condition is often associated with use of illicit substances as a form of self-medication of distress, resulting in a nexus between PTSD and use of synthetic cannabis. However, PTSD does not result in the inability to distinguish right from wrong and adhere to the right, and therefore does not mitigate the offense of theft of military property cited in the basis of separation. (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 outweighed the basis for applicant’s separation –stealing smoke grenades, star-cluster and 270 rounds of ammunition– for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and determined the narrative reason for discharge is appropriate as the applicant’s misconduct of using synthetic cannabinoids is mitigated by applicant’s PTSD, however the applicant is accountable for the misconduct. The narrative reason for discharge is appropriate. (2) The applicant contends discharged for drug abuse, although the applicant states committed no such offense. The applicant contends not failing a urinalysis test and no drugs were at the applicant’s home. The Board considered this contention and determined during a CID interview the applicant admitted to smoking Spice on 9 July 2011, and further admitted two of the three pipes found in residence belonged to the applicant. (3) The applicant contends experiencing a family hardship due to being unable to perform duties as a single parent because the spouse was caught with drugs and ammo and began court martial proceedings while the applicant was going through a divorce and custody proceeding. The Board considered this contention and determined that the applicant’s family hardship does not mitigate the applicant’s use of synthetic cannabinoids, stealing smoke grenades, star-cluster and 270 rounds of ammunition as the Army affords many avenues to Soldier’s including seeking separation for hardship. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the 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 not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s PTSD did not excuse or mitigate the offenses of stealing smoke grenades, star-cluster and 270 rounds of ammunition. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (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: No b. Change Characterization to: No Change 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 AR20210001915 1