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, a 15-month combat tour contributed to the applicant’s poor mental health. Before the arrest, there were no adverse actions on the applicant’s record, divorce, annulment of marriage, forgery, bad checks, or stolen identity while overseas or stateside. The applicant’s service was otherwise honest, faithful, and meritorious. The applicant suffered from depression, anxiety, hardship stress, post-traumatic stress disorder (PTSD), and insanity. The applicant was experiencing the first signs of PTSD and the applicant believes PTSD was really affecting the applicant’s reckless behavior. These actions are not how the applicant normally behaved. The applicant’s chain of command was unsupportive and did not provide any rehabilitation measures to help the applicant. The applicant immediately was assigned to the 642nd Maintenance Company after returning from helping the unit in combat. The applicant was in a difficult marriage. The applicant’s ex-spouse cashed multiple bad checks in the applicant’s name and ruined the applicant’s credit. The applicant signed the A. S.’s birth certificate when the applicant married A. S.’s parent, but the applicant was not the biological parent. The applicant declined to adopt A. S. because the applicant was not financially stable to provide for three children. The applicant already had two children. The applicant was highly stressed, if not insane. As a young person, the experiences at the Iraq / Kuwait border changed the applicant as a person. The applicant does not desire to be blameless in the convictions of marijuana sales and conspiracy, but believes the behavior was related to combat stress, if not PTSD. The applicant is permanently barred from becoming a United States citizen. The applicant has logged 10,000 hours as a union carpenter in New York. The applicant sought mental health treatment, reaching out to different therapists at the Department of Veterans Affairs to receive help for the mental health condition. The applicant did not receive any treatment until recently. The applicant never heard of chronic adjustment disorder until now. The applicant knows the symptoms the applicant has had over the years, the medical professionals deemed the condition to be chronic adjustment disorder and not PTSD. The applicant has been without proper medical care for 11 years. It is unfortunate and shameful the applicant only has 90 days to obtain information from one federal entity to another. b. Board Type and Decision: In a records review conducted on 15 March 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, Commission of a Serious Offense / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 October 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 July 2005 (2) Basis for Separation: The applicant was informed of the following reasons: On 7 April 2005, the applicant was found guilty at a Special (BCD) Court-Martial for: On 15 January, the applicant wrongfully distributed approximately 7.92 grams of marijuana; On 17 January 2005, the applicant wrongfully distributed 6.87 grams of marijuana; and The applicant conspired with another Soldier to wrongfully distribute marijuana between 1 and 17 January 2005. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 August 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 21 September 2005 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 March 2002 / 4 years / The applicant’s DD Form 214 reflects date entered active duty as 14 June 2002, inconsistent with the applicant’s enlistment contract. b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 63B10, Wheeled Vehicle Mechanic / 3 years, 7 months, 6 days / The applicant’s special court-martial sentence to confinement does not appear to be deducted from the total service. The applicant’s AMHRR does not reflect whether the convening authority approved the sentence to confinement, as adjudged or, if approved, how many days the applicant served in confinement. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (1 May 2003 – 31 August 2004) f. Awards and Decorations: NDSM, ASR, GWOTEM, GWOTSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The Criminal Investigation Division (CID), Agent’s Investigative Report, dated 15 January 2005, reflects the applicant was investigated and titled with Wrongful Distribution of Marijuana when a CID agent negotiated and made a controlled purchase of approximately 10 grams of suspected marijuana from the applicant for $100, using CID funds. The substance tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana. The Criminal Investigation Division, Agent’s Investigative Report, dated 17 January 2005, reflects the applicant was investigated and titled with Wrongful Distribution of Marijuana when a CID agent negotiated and made a controlled purchase of approximately 12 grams of suspected marijuana from the applicant for $100, using CID funds. The substance tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana. Report of Result of Trial reflects the applicant was tried in a Special Court-Martial on 7 April 2005. The applicant was charged with three specifications. The summary of offenses, pleas, and findings: Violation of Article 112a: On 15 January 2005, wrongfully distribute approximately 7.92 grams of marijuana; guilty consistent with the plea; and On 17 January 2005, wrongfully distribute approximately 6.87 grams of marijuana; guilty, consistent with the plea. Violation of Article 81: Conspire with Private B. B. to commit an offense under the Uniform Code of Military Justice, to wit: wrongful distribution of marijuana: guilty, consistent with the plea. Sentence: Reduction to E-1; forfeiture of $823 pay per month for four months; and confinement for four months. Confinement Order, dated 7 April 2005, reflects the applicant was ordered to confinement because of special court-martial and was received as an inmate by the Jefferson County Correctional Facility. The applicant provided: Special Court-Martial Order Number 26, dated 17 August 2005, reflecting the applicant was convicted of the charges and sentenced as described in the Report of Result of Trial. United States Department of Justice Immigration and Naturalization Service, Decision on Application for Naturalization, dated 26 September 2005, reflecting the applicant was permanently barred to naturalization because of wrongful distribution of a controlled substance, to wit: marijuana, convictions. i. Lost Time / Mode of Return: None / The record shows the applicant was ordered to confinement on 7 April 2005 because of special court-martial sentence. This period is not annotated on the applicant’s DD Form 214. j. Behavioral Health Condition(s): (1) Applicant provided: Department of Veterans Affairs letter, page 2 (date unavailable), with medical document, reflecting the applicant was rated 70 percent service- connected disabled for chronic adjustment disorder, other specified trauma related disorder with alcohol use disorder claimed as depression, mood swings, anxiety, and insanity. (2) AMHRR Listed: Report of Mental Status Evaluation, dated 28 July 2005, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. The applicant was diagnosed with: Legal problems and antisocial traits. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two self-authored statements; military awards, civilian certifications; dishonored check notices; Supreme Court of the State of New York Order of Service of Summons Pursuant to CPLR 308(5) (divorce); Juvenile Court of Clayton County, Georgia, Petition for Voluntary Surrender; Surrender of Rights Final Release of Adoption; the Army Review Boards Agency, Case Management Division letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has 10,000 hours logged as a union carpenter in New York and provided certificates of completion and an award for 10 years of outstanding service relating to employment. 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 prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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-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. 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. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant’s DD Form 214, block 28, Narrative Reason for Separation as “Misconduct, Commission of a Serious Offense.” The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c. Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason for Separation as Misconduct (Serious Offense). No adjustment will be made since the difference between the two is too minor to warrant a new DD Form 214 issuance. The applicant contends PTSD, insanity, and other mental health conditions affected behavior which ultimately led to the discharge. The applicant provided medical documents indicating a diagnosis of chronic adjustment disorder, other specified trauma related disorder with alcohol use disorder claimed as depression, mood swings, anxiety, and insanity. The VA rated the applicant 70 percent service-connected disabled for the condition. The applicant’s AMHRR shows the applicant underwent a mental status evaluation (MSE) on 28 July 2005, which shows the applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. The applicant was diagnosed with: Legal problems and antisocial traits. The MSE was considered by the separation authority. The applicant contends family issues affected behavior and contributed to the discharge and the chain of command was not supportive nor did the command provide any rehabilitation measures to help the applicant. There is no evidence in the applicant’s AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, paragraph 3-5, 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 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 good service, including a combat tour. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends having 10,000 hours logged as a union carpenter in New York and has provided certificates of completion and an award for 10 years of outstanding service relating to employment. 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: Adjustment Disorder, Mood Disorder, Pain Disorder, Other Specified Trauma Related Disorder, PTSD, and substance disorders. (2) Did the condition exist or experience occur during military service? Yes. The applicant is service connected, but the conditions/diagnoses are unclear. Based of applicant self-report the symptoms were evident in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that distribution and conspiracy are not mitigated as these are not a progression or sequela of trauma. Rather, they require multiple steps, purposefully planned out and executed with attempts at evasion; cognition was intact. Conspiracy further supports conscious decisions over time with additional planning and actions. The partial mitigation is based on drug use being potentially mitigated by the applicant’s trauma diagnosis. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Mood Disorder, Pain Disorder, Other Specified Trauma Related Disorder, PTSD, and substance disorders outweighed the basis for applicant’s separation – Conspiracy and Drug Distribution – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends PTSD, insanity, and other mental health conditions affected behavior which ultimately led to the discharge. See paragraph 9.a of this document.There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered this contention and determined that while the applicant’s diagnoses could potentially mitigated drug use under normal circumstances, the severity of the applicant’s remaining misconduct of conspiracy and distribution outweighed any medical mitigation. (2) The applicant contends family issues affected behavior and contributed to the discharge and the chain of command was not supportive nor did the command provide any rehabilitation measures to help the applicant. The Board concluded that the applicant conspiring and distribution of drugs is not an acceptable response nor related to the contended circumstances and is not sufficient evidence of an inequity in the discharge, thus the applicant was properly and equitably discharged. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention but found the applicant’s misconduct was repeated and over a period of time, showing intact cognitive processes to plan and coordinate as well as avoid detection, thus no relief is warranted. (4) The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. Due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, youthful indiscretion does not excuse the misconduct. There is insufficient evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that the applicant’s misconduct was repeated and over a period of time, demonstrating intact cognitive processes to plan and coordinate as well as avoid detection, thus no relief is warranted. (5) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By conspiring and distributing drugs, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (6) The applicant contends having 10,000 hours logged as a union carpenter in New York and has provided certificates of completion and an award for 10 years of outstanding service relating to employment. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention and determined that the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. 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 voted not to change the applicant’s characterization of service despite applying liberal consideration of all the evidence before the Board. While the applicant’s PTSD potentially mitigating the offenses of drug use, the applicant’s diagnoses/experiences of Adjustment Disorder, Mood Disorder, Pain Disorder, Other Specified Trauma Related Disorder, PTSD as well as the totality of the applicant’s service record did not outweigh the remaining offenses of Conspiracy and Drug Distribution due to the severity of the offenses. 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, as 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 AR20210002042 1