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 requests an upgrade to honorable and a narrative reason change to "Secretarial Authority." The applicant seeks relief contending, in effect the severity of some misconduct can change over time, thereby changing the relative weight of the misconduct in the case of mitigating evidence in a case. For example, marijuana use is still unlawful in the military, but it is now legal under state law in some states, and it may be viewed, in the context of mitigating evidence, as less severe today than it was decades ago. This factor directly applies to the applicant's use of marijuana, which was one of the bases for separation over 20 years ago. The applicant's application is based on PTSD which existed during Army service. The applicant has gone on to lead a productive life following the discharge. This fact is well documented in the application package. The conduct at issue is minor and non-violent. It has been over 20 years since the incident in question. The applicant has always acknowledged and accepted responsibility for the actions and has atoned for the conduct by leading a productive life since leaving the Army. The applicant has demonstrated excellent character and has turned life around since the discharge. The applicant has been gainfully employed since the discharge and has clear career aspirations and goals. The applicant also obtained an associate degree following the discharge. The applicant's conduct was directly attributable to PTSD; it is also true the applicant was only nineteen and twenty years old at the time of the misconduct. The applicant was not yet equipped to handle the mental health issues and self-medicated to cope with the PTSD symptoms. The applicant learned the skills necessary to address the symptoms as the applicant became older and matured. The applicant requests the discharge status be upgraded to honorable, and the narrative reason be changed to secretarial plenary authority. b. Board Type and Decision: In a records review conducted on 25 April 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's PTSD outweighing the basis for separation - FTRs, drunk on duty, and wrongful use of marijuana. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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 / General (Under Honorable Conditions) b. Date of Discharge: 2 May 2001 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 February 2001 (2) Basis for Separation: The applicant was informed of the following reasons: failure to be at appointed place of duty on the following dates: 19 July 2000; 21 August 2000; 7 September 2000; 10 September 2000; 11 September 2000; 15 September 2000; 16 September 2000; 20 September 2000; 21 September 2000. A Company Grade Article 15, dated 10 October 2000 for two accounts of overindulgence in an intoxicating liquor; and receiving a Field Grade Article 15, dated 23 March 2000 for wrongful use of marijuana. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 28 February 2001 (5) Administrative Separation Board: On 28 February 2001, the applicant unconditionally waived consideration of the case before an administrative separation board. On 12 April 2001, the applicant's unconditional waiver was approved. (6) Separation Decision Date / Characterization: 12 April 2001 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 March 1999 / 3 years b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 121 c. Highest Grade Achieved / MOS / Total Service: E-2 / 13B10, Cannon Crewmember / 2 years, 1 month, 10 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 1 October 1999, on 20 September 1999, for failure to report on time for a major FTX. The punishment consisted of extra duty for 14 days. Electronic Copy of DD Form 2624, dated 29 November 1999, reflects the applicant tested positive for THC 84 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 15 November 1999. Report of Mental Status Evaluation, dated 4 January 2001, 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 evaluated at the Division Mental Health, Fort Stewart on 4 January 2001, in conjunction with the commander's request for a mental status evaluation for chapter 14-12. The evaluation was based on clinical interview and medical records review. Military Police Report, dated 18 January 2000, reflects the applicant was apprehended for: Wrongful use of a controlled substance (marijuana). FG Article 15, dated 23 March 2000, for wrongfully using marijuana on or about 15 November 1999. The punishment consisted of a reduction to E-1; forfeiture of $507 pay per month for two months; and extra duty and restriction for 45 days. CG Article 15, dated 10 October 2000, for on or about 7 August 2000, wrongful overindulgence of intoxicating liquor or drugs incapacitated for proper performance of duties. The punishment consisted of a reduction to E-1; forfeiture of $234 and extra duty for 14 days. Numerous Developmental Counseling Forms, for various acts of misconduct, urinalysis failure; disobeying a lawful order; failure to report; drunk on duty; and failure to follow instructions. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Affidavit, dated 14 February 2017, reflects a diagnosis of PTSD; Alcohol Use Disorder, Moderate and child affected by parental relationship distress. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Veteran Advocacy Project; lawyers brief; CRD dated 15 January 2016; American Psychological Association Letter; Affidavit, dated 14 February 2017; Department of Justice Memorandum; three letters of support; Four New York Daily articles. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been gainfully employed, has clear career aspirations and goals, and has obtained an associate degree. 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 14-12a 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 waiverable and nonwaiverable 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 waiverable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaiverable 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 a general (under honorable conditions) 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 suffering from PTSD and Alcohol Abuse. The applicant provided a copy of an affidavit, dated 14 February 2017, which reflects a diagnosis of PTSD; Alcohol Use Disorder, Moderate and child affected by parental relationship distress. The applicant's medical record refers to a pre-service diagnosis of PTSD, and service-related stressors which contributed to PTSD-related concerns. The applicant's AMHRR contains no documentation of PTSD or Alcohol Abuse diagnosis. The applicant's Report of Mental Status Evaluation, dated 4 January 2001, 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 evaluated at the Division Mental Health, Fort Stewart on 4 January 2001, in conjunction with the commander's request for a mental status evaluation for chapter 14-12. The evaluation was based on clinical interview and medical records review. The MSE was considered by the separation authority. The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends the marijuana use at issue is minor and non-violent. It has been over 20 years since the incident in question. The AMHRR indicates the applicant committed many discrediting offenses. 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 U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges based on the passage of time. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both were improper or inequitable. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits 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 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 601-201, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE 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. The applicant contends being gainfully employed and obtaining an associate degree since the discharge. 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 statements provided with the application speak highly of the applicant and recognize the applicant's good conduct and troubles before and 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 existing prior to service with evidence of service-related exacerbation (applicant medical records reflect applicant was the victim of assault during military service). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant pre-service PTSD was exacerbated during the applicant's service based on VA records reflecting the applicant's self-reported assault by a superior while in the military. (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 PTSD mitigates the applicant's offenses of wrongful use of marijuana, overindulgence in alcohol, and failure to report as there is a nexus between PTSD and self-medication and avoidance behavior consistent and these offenses. Further, the Board Medical Advisor opined that there is a nexus between PTSD and disrespect/failure to comply/distrust of authority figures. (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 outweighed the applicant's medically mitigated basis for separation - FTRs, drunk on duty, and wrongful use of marijuana. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed to Secretarial Authority, and that the applicant was previously notified by ARBA that the applicant's narrative reason for upgrade was being change to Secretarial Authority. The Board considered this contention and noted that the applicant was erroneously notified via memorandum of an upgrade of the narrative reason for discharge to SA, though the attached CRD reflected the full rationale of the prior Board's decision to change the narrative reason to Misconduct (Minor Infractions). This Board determined that the applicant was properly separated under the provisions of Chapter 14, paragraph 14-12a, AR 635-200. 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. Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial Authority separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Ultimately, the Board determined that Misconduct (Minor Infractions) is the appropriate narrative reason as the applicant's service record, taken in totality, fell below the specific standard warranting an upgrade to SA. (2) The applicant contends suffering from PTSD and Alcohol Abuse. The Board considered this contention and accordingly, the Board voted to upgrade the applicant's narrative reason for discharge based on the applicant's PTSD outweighing the basis for separation - FTRs, drunk on duty, and wrongful use of marijuana (3) The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The Board considered this contention but determined that an upgrade was warranted based on the applicant's PTSD outweighing the basis for separation. (4) The applicant contends the marijuana use at issue is minor and non-violent and it has been over 20 years since the incident in question. The Board considered this contention and determined that an upgrade was warranted based on the applicant's PTSD outweighing the basis for separation. (5) The applicant contends an upgrade of the discharge would allow veterans benefits. 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 (6) The applicant requests a reentry eligibility (RE) code change. The Board considered this contention and voted to maintain the RE-code at 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. (7) The applicant has been gainfully employed and obtained an associate degree since discharge. 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 PTSD outweighing the applicant's basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD outweighing the basis for separation - FTRs, drunk on duty, and wrongful use of marijuana. Therefore, the Board voted to grant relief. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD outweighing the basis for separation - FTRs, drunk on duty, and wrongful use of marijuana. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable as outlined in part 9b(1). (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: Yes b. Change Characterization to: Honorable 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 AR20210002006 1