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 narrative reason change and a reentry eligibility (RE) code change. The applicant seeks relief contending, in effect, the discharge was equitable because it was based on one isolated incident in 30 months of service with no other adverse incidents. The applicant believes a RE code of 4 is extremely harsh. Of the other eleven Soldiers involved, several were allowed to continue service after the board’s decision to discharge the applicant. The senior transition center technician changed the recommended RE code from 3 to 4 and would not provide an explanation. Since the applicant’s discharge, the applicant has completed a bachelor’s and master’s degree and continued to work toward being a productive citizen. Every job the applicant has worked required an initial urinalysis (a random urinalysis), and every single one was passed. b. Board Type and Decision: In a records review conducted on 9 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 (Minor Infractions) / AR 635-200, Chapter 14-12a / JKN / RE-3 / Honorable b. Date of Discharge: 5 December 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 September 2006 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for benzodiazepine on 10 February 2006. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 5 September 2006 (5) Administrative Separation Board: On 28 September 2006, the applicant was notified to appear before an administrative separation board and advised of rights. On 19 October 2006, the administrative separation board convened, and the applicant appeared with counsel. The Board recommended, by majority vote, the applicant be discharged, and by unanimous vote the applicant receive a general (under honorable conditions) characterization of service. On undated, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 22 November 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 June 2004 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19D10, Calvary Scout / 4 years, 29 days d. Prior Service / Characterizations: USAR, 7 November 2002 – 3 June 2003 / NA IADT, 4 June 2003 – 13 August 2003 / NA (Concurrent Service) e. Overseas Service / Combat Service: SWA, Iraq (29 November 2005 – 20 August 2006) f. Awards and Decorations: NDSM, GWOTSM, ICM, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 18 June 2006, for wrongfully using benzodiazepine (between 8 and 15 February 2006). On or about 21 March 2006, failed to ensure weapon was always accounted for and in control. The punishment consisted of a reduction to E-2; forfeiture of $713 pay per month for two months; and extra duty and restriction for 45 days. Report of Mental Status Evaluation, dated 24 August 2006, 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 is psychologically cleared for administrative separation. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: DD Form 293; Memorandum, dated 30 October 2006; ASAP Certificate of Completion; two Certificates of Training; DA Form 4187 for promotion; Department of the Army Certificate of Completion; Colorado Technical University Memo; letter of support; Colorado Technical University Bachelor’s Degree; Separation File. (2) AMHRR Listed: Report of Mental Status Evaluation, dated 17 October 2006, 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 was diagnosed with: Adjustment Disorder with Mixed Emotional Features and Insomnia. Return to duty with no change in duty status. Service member meets medical retention standards IAW AR 40-50-I. Psychiatrically cleared for any action deemed appropriated by the command. 5. APPLICANT-PROVIDED EVIDENCE: None 6. POST SERVICE ACCOMPLISHMENTS: The applicant has completed a bachelor’s and master’s degree and continues to work toward being a productive citizen. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. 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 “JKN” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (minor infractions). 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. 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. 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 14-12a, AR 635-200 with honorable discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Minor Infractions),” and the separation code is “JKN.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends of the other eleven Soldiers involved, several were allowed to continue service after the board’s decision to discharge the applicant. The DODI 1332.28 provides each case must be decided on its individual merits, and a case-by-case basis, considering the unique facts and circumstances of the case. Additionally, when an applicant cites a prior decision of the ADRB, another agency, or a court, the applicant shall describe the specific principles and facts contained in the prior decision and explain the relevance of the cited matter to the applicant’s case. The Board is an independent body, not bound by prior decisions in its review of subsequent cases because no two cases present the same issues. The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends completing a bachelor’s and master’s degree and continues to work toward being a productive citizen. 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. The third-party statement provided with the application speaks highly of the applicant. It recognizes the applicant’s good conduct after leaving the Army. 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. (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 and TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that there is convincing evidence for the presence of both PTSD and TBI as potentially mitigating conditions. Each of these conditions, in particular PTSD, includes substance use as a form of self-medication of symptoms as part of the natural history and sequelae of the condition. Therefore, the advisor finds a nexus between such conditions and use of valium resulting in positive UA leading to the basis of separation. However, applicant’s current characterization of discharge, narrative reason for separation, and RE code all appear proper and equitable even when considering the evidence of mitigation under liberal consideration guidelines. (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 PTSD and TBI outweighed the wrongful use of Valium basis for separation 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 applicant’s narrative reason for discharge is appropriate as the applicant was involuntarily separated for misconduct, and the behavioral health condition does not fully excuse the applicant’s responsibility for the misconduct. Thus, the applicant was properly and equitably discharged. (2) The applicant contends of the other eleven Soldiers involved; several were allowed to continue service after the board’s decision to discharge the applicant. The Board considered this contention and determined there is insufficient evidence to support this contention. The current characterization of service is honorable, there is no further relief available with respect to characterization. Liberal consideration was applied to the narrative reason, and it was determined PTSD and TBI did mitigate the wrongful use of Valium, but did not fully excuse the misconduct, the applicant was involuntarily separated for misconduct and the fraction of responsibility remaining with the applicant makes “Minor Infractions” equitable. (3) The applicant requests a reentry eligibility (RE) code change. The Board considered this contention and voted to maintain the RE-code to a RE-3, which is a waivable code. An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (4) The applicant contends completing a bachelor’s and master’s degree and continues to work toward being a productive citizen. The Board recognizes the applicant completing a bachelor’s and master’s degree and determined the current characterization of service is honorable, there is no further relief available with respect to characterization. Liberal consideration was applied to the narrative reason, and it was determined PTSD and TBI did mitigate the wrongful use of Valium, but did not fully excuse the misconduct, the applicant was involuntarily separated for misconduct and the fraction of responsibility remaining with the applicant makes “Minor Infractions” equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 a prior ADRB has upgraded the discharge with a Character of Honorable and a narrative Reason of Misconduct (minor infractions). (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 AR20210001997 1