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, a narrative reason change to "Secretarial Authority", an SPD code change, and a RE-code change. The applicant seeks relief contending, in effect, reasons of propriety and equity serve as the foundation for the desired modifications to the discharge. By failing to properly consider all the mitigating evidence of the alleged alcohol usage, the applicant's chain of command committed a substantial error of judgment on the appropriateness of the discharge. The commander did not receive a full picture of the evidence from the investigating officer. The statement of SSG B. and the crucial mitigating information from the military law enforcement were completely disregarded. SSG B., who was present and in close proximity to the applicant the night of the altercation with SPC T., did not observe any indicators of intoxication, smell alcohol, or sense the applicant to be in any way drunk. The commander would not have been able to accurately evaluate the entirety of the situation without the summary of SSG B's statement. Additionally, the notification memorandum mentioned a urine sample taken on 4 January 2012, which had tested positive for MDMA, but it omitted the applicant's exoneration from the charge of violating Article 112a of the UCMJ because the investigation revealed the applicant had not consumed a controlled substance with knowledge or intent. Without a doubt, the applicant was unfairly treated during the separation proceedings due to its egregious inappropriate inclusion. Such inclusion was an obvious case of a serious procedural error which improperly influenced the chain of command. Regarding equitable consideration, the applicant offers pertinent post-service behavior and accomplishments. A relief is justified based on the applicant's service record, remarkable achievements after leaving the Army, and other material submitted to the Board for review. When the applicant's post-service achievements are considered along with the character references and supporting recommendations of the former commanding officer, first sergeant, and squad leader, an upgrade is justified. Until the Board grants a relief, the applicant will continue to suffer from and be unfairly stigmatized by the current unfair discharge. The Counsel further details the contentions in an allied legal brief provided with the application. b. Board Type and Decision: In a records review conducted on 25 May 2023, and by a 5- 0 vote, the Board determined that the characterization of service was inequitable based on the applicant's Major Depressive Disorder (MDD) outweighing the applicant's Alcohol Rehabilitation Failure basis for separation. 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: Alcohol Rehabilitation Failure / AR 635-200, Chapter 9 / JPD / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 13 June 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 May 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant, while enrolled in the Army Substance Abuse Program on 18 June 2012, was diagnosed with alcohol dependence. From a urine sample collected on 4 January 2012, the applicant tested positive for MDMA. On 10 February 2013, the applicant was involved in an incident in which it was reported the breath smelled like alcohol. After careful consideration with the rehabilitation team, it was determined further attempts were not practical; thus, on 20 February 2013, the applicant was rendered a rehabilitative failure. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 14 (sic) May 2013, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 13 May 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2010 / 3 years, 25 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14S10, Avenger Crewmember / 2 years, 9 months, 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 5 March 2012, for disobeying a lawful order on 18 January 2012, and between 30 December 2011 and 4 January 2012, wrongfully using "3, 4-Methylenedioxymethamphetamine," a Schedule I controlled substance. The punishment consisted of a reduction to E-2; forfeiture of $745 pay per month for two months (suspended); extra duty for 45 days (suspended); restriction for 45 days; and an oral reprimand. A Developmental Counseling Form for an investigation being initiated for consumption of alcoholic beverage while still enrolled in ASAP. Memorandum for Record, Subject: Commander's Inquiry Findings with allied investigative documents, dated 18 February 2013, reflects the investigation officer found the preponderance of evidence showed the applicant did consume alcohol on the night of 9 February through the early morning hours of 10 February 2013, according to the interviews and statements obtained from the applicant and Deputy Officer G., the responding officer of the Victorville Sheriff's Office. Memorandum, Subject: Summary of Rehabilitation Efforts, dated 20 February 2013, provided by the Fort Irwin ASAP Clinical Director, reflects the applicant's rehabilitation team, which met on 18 February 2013, determined the applicant, a self-referral to ASAP on 18 June 2012, was a rehabilitation failure according to AR 600-85, paragraph 10-6b2 (sic) based on an alcohol-related incident on 9 and 10 February 2012, reported on 17 February 2013, by a civilian Sheriff's Office. Report of Mental Status Evaluation, dated 26 April 2013, reflects the applicant was psychologically cleared to participate in administrative proceedings. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements and did not require a medical board. The applicant had been screened for PTSD and mTBI with negative results. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, dated 27 February 2013, the applicant noted behavioral health issues and the examining medical physician noted in the comments section: Anxiety and depression were diagnosed in November 2011, and the applicant was taking medication currently; the applicant was in rehabilitative treatment for chemical dependency (alcohol) in August 2012; and the applicant was taking Ambien for the insomnia, since November 2011. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and Legal Brief with Exhibits 1 through 25. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is employed as a trainer with the EOS Athletic Club, and a certified fitness trainer, CPR and AED, and Purple belt Brazilian Jui-Jitsu. 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 600-85 defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10-13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy includes: A Soldier's self-referral to BH for SUD treatment; Admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to treatment and provided by Soldiers as part of their initial entry into SUD treatment; Drug or alcohol test results, if the Soldier voluntarily submits to a DoD or Army SUD treatment before the Soldier has received an order to submit for a lawful drug or alcohol test; and, the results of a drug or alcohol test administered solely as a required part of a DoD or Army SUD treatment program. e. 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 9 outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to the Army Substance Abuse Program (ASAP) for alcohol or drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. (5) Paragraph 9-4 stipulates the service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. An honorable discharge is mandated in any case in which the Government initially introduces into the final discharge process limited use evidence as defined by AR 600-85. f. 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 "JPD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 9, for Alcohol Rehabilitation Failure. g. 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 non-waiverable separations. Table 3-1 defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a non-waiverable 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 evidence of Army Military Human Resource Record (AMHRR) indicates on 18 February 2013, the unit commander in consultation with the Clinical Director/Army Substance Abuse Program (ASAP), declared the applicant a rehabilitation failure. The applicant did not have the potential for continued military service because of continued abuse of alcohol and the level and length of required treatment, which exceeded what was available in the Active Duty Army. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 9, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "alcohol rehabilitation failure," and the separation code is "JPD." Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the SPD code should be changed. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 9, is "JPD." The applicant contends that the administrative separation is procedurally improper based on the notification memorandum stating that the applicant tested positive for MDMA but the investigation into the failed urinalysis determined that the applicant was not culpable because her drink was most likely drugged. The applicant submitted a memorandum dated 7 June 2012 from CPT J.M. stating that during the Article 15 hearing the applicant was found not guilty of the drug charge as the evidence supported that the applicant's drink was likely tampered with the drug resulting in the finding of "not guilty" on the drug charge. The Article 15 dated 5 March 2012 reflects that the applicant was found guilty of some specifications but the drug specification was not lined out as required if the applicant was found not guilty. The applicant contends the discharge is deemed equitable when it is determined relief is warranted based on the applicant's service record, including other presented evidence. The applicant contends an upgrade is justified also by equitable consideration of the applicant's post-service behavior, accomplishments, and supporting references and recommendations. 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's character and performance and recognize the applicant's good conduct and accomplishments after leaving the Army. The applicant's AMHRR contains documentation, a Report of Medical History, dated 27 February 2013, which supports diagnoses of in-service anxiety, depression, and alcohol dependency. The record shows the applicant underwent a mental status evaluation (MSE) on 26 April 2013, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. 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: Adjustment Disorder, Major Depressive Disorder (MDD), and Anxiety. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder, Anxiety and Depression. The VA has also service connected the applicant for MDD. (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 a nexus between MDD and self-medicating with substances; therefore, the Alcohol Rehabilitation Failure that led to applicant's discharge is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, to include the Board Medical Advisor opine, the Board determined that the applicant's MDD outweighed the medically mitigated Alcohol Rehabilitation Failure basis for separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs change to "Secretarial Authority." The applicant was separated under the provisions of Chapter 9, AR 635- 200 with a general (under honorable conditions) discharge. The Board considered this contention and determined the applicant's narrative reason for separation is appropriate, as the applicant is accountable for the misconduct even though the applicant's MDD mitigates applicant's Alcohol Rehabilitation Failure basis for separation. (2) The applicant contends the SPD code should be changed. An SPD code change is not warranted as there was no error of discretion by the applicant's command and the Command did not violate the applicant's procedural due process. Further, the Board determined that, given the applicant was discharged in accordance with AR 635-200, Chapter 9, the applicant received the appropriate SPD code (JPD) Therefore, no change is warranted. (3) The applicant contends that the applicant's chain of command made a material error of discretion by not properly considering all the mitigating evidence regarding the applicant's drug use. Specifically, the chain of command completely ignored SSG Boykin statement that the applicant was not impaired in any way. The Board considered this contention and determined that the records reflected that the investigating officer findings were in accordance with AR 15-6, the findings included the evidence supporting the findings, including SSG Boykin's statement. Therefore, the Board determined the applicant's discharge is proper and equitable. (4) The applicant contends the discharge is deemed equitable when it is determined relief is warranted based on the applicant's service record, including other presented evidence. The Board considered this contention during proceedings; however, while the applicant's MDD outweighed the applicant's Alcohol Rehabilitation Failure basis for separation warranting an upgrade in characterization, the applicant's service record does not outweigh the misconduct associated with the alcohol related incident. (5) The applicant contends an upgrade is justified by equitable consideration of the post- service behavior, accomplishments, and supporting references and recommendations. The Board considered this contention during proceedings; however, while the applicant's MDD outweighed the applicant's Alcohol Rehabilitation Failure basis for separation, the applicant's post-service behavior, accomplishments, and recommendations do not outweigh the misconduct associated with the alcohol related incident. (6) The applicant contends that the administrative separation is procedurally improper based on the notification memorandum stating that the applicant tested positive for MDMA but the investigation into the failed urinalysis determined that the applicant was not culpable because the applicant's drink was most likely drugged. The applicant contends that the applicant was found not guilty at the applicant's Article 15 hearing for violating Article 112a after the applicant's failed urinalysis. The Board considered the applicant submitted memorandum dated 7 June 2012 from CPT J.M. stating that during the Article 15 hearing the applicant was found not guilty of the drug charge as the evidence supported that the applicant's drink was likely tampered with the drug resulting in the finding of "not guilty" on the drug charge. The Board also considered the Article 15 dated 5 March 2012 reflects that the applicant was found guilty of some specifications, but the Article 15 does not specify the specifications that the applicant was found guilty. While the Board acknowledges that the applicant's commander's memorandum states the applicant was found not guilty of the drug offense, the applicant's commander initiated separation 11 months after the memorandum was written. AR 635-200 limits separation actions for conduct already considered by an administrative board or judicial proceeding and disposed of in a manner indicating separation is not warranted. AR 635-200 does not limit separation action for Article 15 proceeding as such proceedings are non-judicial. Therefore, the Board determined that the applicant's separation is procedurally proper. c. The Board determined that the characterization of service was inequitable based on the applicant's Major Depressive Disorder (MDD) mitigating applicant's Alcohol Rehabilitation Failure basis for separation. 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. 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 MDD mitigated the applicant's Alcohol Rehabilitation Failure. 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. (3) The Board voted not to change the applicant's RE code due to the applicant being 100% service connected with the VA with 70% for Major Depressive Disorder. 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 AR20210002064 1