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 an honorable. The applicant seeks relief contending, in effect, understanding the Department of Defense regulations and procedures and the applicant's actions did not reflect well on the command, the Army, nor the applicant's family. The applicant is attempting to explain the mitigating circumstances which clouded the applicant's judgement. On 29 May 2007, the applicant and the applicant's spouse were deployed to Iraq with the unit in which both were assigned. During the deployment, the spouse and another member of the command engaged in an extramarital affair. The applicant was subjected to comments in which the applicant was questioned as a person. The applicant was embarrassed and ridiculed by members of the command. In a desperate attempt, the applicant sought the advice and counsel of the command because the situation had become intolerable. The applicant's chain of command did not provide the assistance the applicant needed. The applicant sought mental health counseling. Upon returning to the United States, the applicant did not recover from the shame, depression, and anxiety. The applicant decided to self-medicate with cannabis, which was a horrible mistake the applicant regrets. The applicant's spouse left the applicant for another member of the command and became pregnant, and the applicant and the spouse separated. The applicant was completely devastated. After the deployment, the applicant was reassigned to Hunter Army Airfield. During this time, the applicant learned the former spouse delivered a baby which was conceived while deployed in Iraq and while having an extramarital affair. This news destroyed the applicant and made the applicant relive the entire situation again. The applicant once again turned to cannabis to self-medicate to cope with depression, anxiety, and mood swings. The applicant served four years on active duty and was a model Soldier. The applicant was selected to attend the Primary Leadership Development Course (PLDC) as a private first class and the applicant's performance was admirable. The applicant earned several deployment awards and loved the service. The applicant's separation designation does not reflect the totality of the applicant's service as a Soldier, only a period in which the stress was so intense it impaired the applicant's thinking and decision making process. Because of the applicant's discharge characterization, it is very difficult to find employment, making it hard to maintain health care. The applicant's life sometimes seems to go in a downward spiral. The applicant attended a technical school, with the assistance of the applicant's family. The applicant earned a Certificate of Aviation Maintenance Mechanic, but the applicant needs to complete the license. It would benefit the applicant if the applicant could receive the education benefits. The applicant completely understands what the applicant did was wrong and accepts full responsibility for the applicant's situation. The applicant is humble and requests consideration on this matter to gain the self-esteem back as a combat veteran and be proud of having served in the best Army in the world of a nation which gives second chances, especially to Soldiers who have served in combat. b. Board Type and Decision: In a records review conducted on 4 April 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's generalized anxiety diagnosis mitigating applicant's marijuana 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, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 2 June 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 May 2009 (2) Basis for Separation: Under the provisions of Army Regulation, 635-200, paragraph 14-12c, Commission of a Serious Offense. The applicant was informed of the following reasons: Wrongful use of a controlled substance THC. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 May 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 December 2007 / 6 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 85 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 3 year, 8 months, 6 days d. Prior Service / Characterizations: RA, 27 September 2005 - 30 December 2007 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (29 May 2007 - 13 August 2008) f. Awards and Decorations: AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 22 January 2009, reflects the applicant tested positive for THC (marijuana), during an Inspection Other (IO) urinalysis testing, conducted on 13 January 2009. Electronic Copy of DD Form 2624, dated 21 March 2009, reflects the applicant tested positive for THC 68 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 11 March 2009. Mental Status Evaluation, dated 2 April 2009, 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 had been screened for PTSD and mild traumatic brain injury (mTBI) and the conditions were considered but were ruled out as causes of the Soldier's clinical presentation. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. Field Grade Article 15, dated 9 April 2009, for wrongfully using marijuana (THC), a Schedule I controlled substance (between 12 February and 11 March 2009). The punishment consisted of a reduction to E-3; forfeiture of $929 pay per month for two months (suspended); extra duty for 45 days (25 days suspended); and restriction for 60 days (40 days suspended). Three Developmental Counseling Forms, for notice of intent to initiate chapter proceedings for testing positive for THC; violation of Article 112a, UCMJ, Wrongful use of a controlled substance; and violation of restriction of bed quarters. The applicant provided DD Form 214, reflecting the applicant had completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12c (2), with a narrative reason of Misconduct (Drug Abuse). The DD Form 214 was authenticated with the applicant's electronic signature. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 214; two DD Forms 293; two self-authored statements; separation documents; Aviation Maintenance Technician Certificate; congressional documents; Department of Veterans Affairs letter; third party supporting statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant attended a technical school and earned a Certificate of Aviation Maintenance Mechanic. 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, paragraph 12c(2), misconduct (drug abuse). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resources Record (AMHRR) is void memorandum of approval by the separation authority. The applicant provided a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's electronic signature. The applicant's DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c (2), by reason of Misconduct (Drug Abuse), with a characterization of service of general (under honorable conditions). The AMHRR reflects the applicant was notified under AR 635-200, Paragraph 14- 12c, Commission of a Serious Offense, which would require the narrative reason "Misconduct (Serious Offense)." There is no record to establish whether the separation authority approved the separation under AR 635-200, paragraph 14-12c(2), Misconduct (Drug Abuse) or paragraph 14-12c, Misconduct (Serious Offense). The applicant contends depression and anxiety because of family issues affected behavior and ultimately led to the discharge. The applicant's AMHRR contains no documentation of mental health diagnosis. The applicant did not submit any evidence, other than the applicant's statement and a statement from the applicant's parent, to support the contention the discharge resulted from any medical condition. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 2 April 2009, which indicates the applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. The applicant had been screened for PTSD and mTBI and the conditions were considered but were ruled out as causes of the Soldier's clinical presentation. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends the applicant did not receive any assistance from the command for the mental health or family issues. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends harassment by members of the unit. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. 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 an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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 contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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 contends attending a technical school and earning a Certificate of Aviation Maintenance Mechanic. 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: Generalized Anxiety Disorder service connected as "Neurosis." Additionally, the applicant asserts other behavioral health conditions, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence of service-connected generalized anxiety. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that Generalized Anxiety as a service-connected condition provides mitigation of the basis of separation, as substance use as a means of self-medication of symptoms is consistent with the natural history of anxiety disorders. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's generalized anxiety outweighed the marijuana use basis for separation. b. Response to Contention(s): (1) The applicant contends depression and anxiety because of family issues affected behavior and ultimately led to the discharge. The Board considered this contention and determined applicant's generalized anxiety diagnosis mitigates applicant's marijuana use basis for separation. The Board voted to upgrade the discharge to Honorable with Misconduct (minor infractions). (2) The applicant contends the applicant did not receive any assistance from the command for mental health or family issues. The Board considered this contention and determined applicant's generalized anxiety diagnosis mitigates applicant's marijuana use basis for separation. The Board voted to upgrade the discharge to Honorable with Misconduct (minor infractions). (3) The applicant contends harassment by members of the unit. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. The Board voted to upgrade the discharge to Honorable with Misconduct (minor infractions) due to applicant's generalized anxiety diagnosis mitigating applicant's marijuana use basis for separation. (4) 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. (5) The applicant contends an upgrade would allow veterans benefits and educational benefits through the GI Bill. 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 contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (7) The applicant contends attending a technical school and earning a Certificate of Aviation Maintenance Mechanic. The Board considered this contention and determined applicant's generalized anxiety diagnosis mitigates applicant's marijuana use basis for separation. The Board voted to upgrade the discharge to Honorable with Misconduct (minor infractions). c. The Board determined the discharge is inequitable based on the applicant's generalized anxiety diagnosis mitigating applicant's marijuana 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 generalized anxiety mitigated the applicant's misconduct of marijuana 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 AR20210002052 1