1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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 through counsel, requests an upgrade to honorable and change the narrative reason to "Miscellaneous." The applicant seeks relief contending, in effect, at the time of the cocaine use, the applicant was suffering from depression stemming from a deployment to Afghanistan. The applicant properly sought treatment at an Army medical center; however, was improperly diagnosed as not showing any signs of depression. The applicant then attempted to self-medicate with illicit drugs because the applicant believed they had no other choice. These facts were evidently not given due consideration by the applicant's chain of command before the applicant was discharged. Furthermore, since being discharged the applicant has worked tremendously hard to actualize the dream of becoming a veterinarian. The applicant maintains two jobs and attends college. The applicant has continued to impress the employers, professors, and family members with the applicant's strong will and determination. Rather than fold under the stress of being administratively separated from the Army, the applicant has rebounded and demonstrated the strength of the applicant's character. b. Board Type and Decision: In a records review conducted on 17 May 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Depression mitigating the applicant's cocaine use basis for separation. 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: 9 May 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 March 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant did, at or near Vicenza, Italy, on or about 29 October 2013, wrongfully use cocaine. (3) Recommended Characterization: The Company Commander recommended a General (Under Honorable Conditions); however, the Battalion Commander recommended an Honorable discharge. (4) Legal Consultation Date: 1 April 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 April 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2011 / 3 years, 26 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Food Service Specialist / 2 years, 8 months, 24 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Italy, SWA / Afghanistan (20 June 2012 - 30 March 2013) f. Awards and Decorations: ACM-CS, ARCOM, MUC, NDSM, GWOTSM, ASR, OSR, NATOMDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Positive Drug Test Result Memorandum, dated 2 December 2013, reflects the applicant tested positive for COC (310 NG), during an Inspection Random (IR) urinalysis testing conducted on 29 October 2013. FG Article 15, dated 6 February 2014, for wrongfully using cocaine on or about 29 October 2013. The punishment consisted of a reduction to E-1; forfeiture of $765 pay per month for two months; and extra duty and restriction for 45 days. Two Developmental Counseling Forms, for a positive urinalysis and initiation of separation. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Adult Preventive and Chronic Care Flowsheet, references adjustment disorder 6 December 2013 and depression 6 December 2013. (2) AMHRR Listed: Report of Mental Status Evaluation, dated 12 March 2014, 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 applicant was diagnosed with: Axis I: Depression. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; attorney brief with listed exhibits 1 through 16. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has maintained two jobs and attends college. The applicant has continued to impress employers, professors, and family member with the applicant's strong will and determination. 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 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 good service, including a combat tour. The applicant contends self-medicating for depression and adjustment disorder after returning from a deployment to Afghanistan. The applicant contends that the applicant properly sought treatment at an Army medical center; however, was improperly diagnosed as not showing any signs of depression. The applicant provided a copy of Adult Preventive and Chronic Care Flowsheet, which references adjustment disorder 6 December 2013 and depression 6 December 2013. The applicant's AMHRR contains documentation which supports a diagnosis of in-service depression. The record shows the applicant underwent a mental status evaluation (MSE) on 12 March 2014, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The applicant was diagnosed with: Axis I: Depression. The MSE was considered by the separation authority. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The third-party statements provided with the application speak highly of the applicant and recognize the applicant's good conduct after leaving the Army. The applicant contends that the applicant has maintained two jobs and attends college and continued to impress employers, professors, and family member with the applicant's strong will and determination. 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: Depression. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed with and treated for depression on active duty. (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 Depression mitigates the applicants' Depression as there is a nexus between Depression and self-medicating with substances. (4) Does the condition or experience outweigh the discharge? Yes. After liberally considering the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Depression outweighed the applicant's medically mitigated offense of wrongful drug use (cocaine). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed to "miscellaneous." The Board considered this contention and determined the applicant's narrative reason for discharge is inequitable based on the applicant's depression outweighing the applicants medically mitigated of wrongful drug use (cocaine use). The Board voted to change the applicant's narrative reason to "minor misconduct," as it is consistent with other cases of this nature. (2) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. (3) The applicant contends self-medicating for depression and adjustment disorder after returning from a deployment to Afghanistan. The applicant also contends that the applicant properly sought treatment at an Army medical center; however, was improperly diagnosed as not showing any signs of depression. The Board considered this contention and determined the applicant's discharge is inequitable due to applicant's depression mitigating applicant's cocaine use basis for separation. (4) The applicant has maintained two jobs and attends college and continued to impress employers, professors, and family member with the applicant's strong will and determination. The Board considered this contention and determined the applicant's discharge is inequitable due to applicants' depression mitigating applicant's cocaine use basis for separation. c. The Board determined the discharge is inequitable based on the applicant's Depression mitigating the applicant's cocaine use basis for separation. 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 depression mitigated the applicant's misconduct of cocaine use. 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 AR20210001960 1