1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is honorable. The applicant, through counsel, requests a narrative reason change. The applicant seeks relief contending, in effect, suffering from post-traumatic stress disorder (PTSD) and should have been referred by the command for inpatient medical treatment and rehabilitatively transferred instead of separated for misconduct. The record shows the applicant served honorably from enlistment through the deployment to Iraq. Within five months of the applicant’s return from Iraq, PTSD caused the applicant to escalate into a rapid and uncharacteristic pattern of misconduct. Every effort should have been made to provide the applicant with medical treatment. Instead, the applicant was repeatedly punished for the errors and was eventually confined in a county jail for a month before the applicant was separated. The applicant has responsibly acknowledged committing several acts of misconduct between May and August 2009. It was obvious from the dramatic change in the applicant’s behavior the applicant was suffering from emotional distress associated with PTSD. The applicant was discouraged from attempting to mitigate the conduct or seek a rehabilitative transfer, and therefore did not have the health conditions considered by an administrative separation board. It is inconceivable the applicant’s command did not recognize the symptoms which plagued the applicant’s last months in the Army and determine the applicant’s disciplinary problems were related to PTSD. The physicians who conducted the separation physicals, which were ordered because of alcohol and drug misconduct, seemed to ignore the red flags noted in the applicant’s medical history. It appears the Army turned its back on the applicant but should have made every effort to provide the applicant with necessary medical treatment. If the applicant had received appropriate intervention, instead of repeated punishments, the applicant would have been rehabilitated and may still be in the Army. The applicant should be eligible for Department of Veterans Affairs (VA) medical treatment. The applicant is a 28 year old burdened by the discharge and the prejudices in civilian life, which prohibit the applicant from receiving critically needed veteran benefits. This result is inequitable considering the applicant’s selfless service as a combat veteran and Soldier. The attached memorandum signed by Secretary Hagel on 3 September 2014, and supplemental policy guidance which “details medical considerations, mitigating factors, and procedures for review,” should be considered. For cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct which caused the discharge. The applicant regrets the results of the decision, but the applicant cannot be blamed for wanting the relief the compassionate medical treatment could have provided. The applicant is requesting medical and educational benefits which many fellow Soldiers and veterans enjoy. The applicant requests to be given a second chance at having a good and honorable life. The applicant further details the contentions in the application and sworn declaration. b. Board Type and Decision: In a records review conducted on 18 April 2023, and by 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Minor Infractions) / AR 635-200, Paragraph 14-12a / JKN / RE-3 / Honorable b. Date of Discharge: 24 September 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 September 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant, having a lawful command from Lieutenant Colonel (LTC) W. C., the superior commissioned officer, then known by the applicant to be the superior commissioned officer, to perform extra duty, or words to that effect, did willfully disobey the same, this is a violation of Article 90, UCMJ; The applicant, having received a lawful order from Staff Sergeant (SSG) J. C., the superior noncommissioned officer, then known by the applicant to be the superior noncommissioned officer, to report to the battery area did willfully disobey the same, this is a violation of Article 91 of the UCMJ; The applicant did between 1 and 16 June 2009, wrongfully use marijuana, this is a violation of Article 112a, UCMJ; The applicant did between 17 and 22 June 2009, wrongfully use marijuana, this is a violation of Article 112a, UCMJ; The applicant did between 23 June and 23 July 2009, wrongfully use marijuana, this is a violation of Article 112a, UCMJ; and The applicant did between 11 and 14 August 2009, wrongfully use cocaine, this is a violation of Article 112a, UCMJ. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 15 September 2009 (5) Administrative Separation Board: On 15 September 2009, the applicant unconditionally waived consideration of the case before an administrative separation board as part of an Offer to Plead Guilty in a Summary Court-Martial proceeding. (6) Separation Decision Date / Characterization: 21 September 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 January 2007 / 4 years, 17 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 2 years, 7 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (28 November 2007 – 29 December 2008) f. Awards and Decorations: ARCOM, MUC, NDSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand, dated 18 May 2009, reflects the applicant was driving while intoxicated. After being stopped for operating a vehicle without operational headlights on 7 May 2009, the applicant refused to take a lawfully requested breathalyzer test. Field Grade Article 15, dated 21 May 2009, for physically controlling a passenger vehicle while drunk (7 May 2009). The punishment consisted of a reduction to E-3; forfeiture of $500 pay; and extra duty and restriction for 45 days. Electronic Copy of DD Form 2624, dated 12 June 2009, reflects the applicant tested positive for THC 87 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 1 June 2009. Electronic Copy of DD Form 2624, dated 25 June 2009, reflects the applicant tested positive for THC 201 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 17 June 2009. Electronic Copy of DD Form 2624, dated 1 July 2009, reflects the applicant tested positive for THC 380 (marijuana), during a Probable Cause (PO) urinalysis testing, conducted on 23 June 2009. Field Grade Article 15, dated 10 July 2009, for wrongfully using marijuana (between 2 May and 1 June 2009). The punishment consisted of a reduction to E-1; forfeiture of $699 pay per month for two months (suspended); and extra duty and restriction for 45 days. Electronic Copy of DD Form 2624, dated 29 July 2009, reflects the applicant tested positive for COC 10099 (cocaine) and THC 124 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 14 July 2009. Pretrial Agreement, dated 18 August 2009, reflects the applicant offered to agree to a summary court-martial; pled guilty to four specifications; and waive the right to an administrative separation board. The offer was accepted by the convening authority. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Confinement,” effective date 24 August 2009; and From “Confinement” to “PDY,” effective date 19 September 2009. Report of Result of Trial reflects the applicant was tried in a Summary Court-Martial on 26 August 2009. The applicant was charged with five specifications. The summary of offenses, pleas, and findings: Violation of Article 90, Disobey a Superior Officer on 13 June 2009; guilty, consistent with the plea. Violation of Article 91, Disobey an NCO, on 17 June 2009: guilty, consistent with the plea. Violation of Article 112a, Wrongfully Use a Controlled Substance: Between 7 and 14 July 2009, wrongfully use cocaine; guilty, consistent with the plea Between 24 June and 14 July 2009, wrongfully use marijuana; guilty, consistent with the plea. Sentence: Confinement for 30 days and restriction for 30 days following confinement. i. Lost Time / Mode of Return: 27 days (Confinement, 24 August 2009 – 19 September 2009) / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: Medical Records, dated from 10 January 2007 to 28 August 2009, reflect the applicant’s problems listed or assessed as: PTSD symptoms; alcohol abuse; dysthymic disorder (depressive neurosis); insomnia related to AXIS I/II mental disorder (nonorganic); AXIS IV psychosocial and environmental problems; AXIS V, Global Assess of Functioning (GAF) scale (100-0); and partner relational problem. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed enclosures 1 through 28. 6. POST SERVICE ACCOMPLISHMENTS: None listed with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (4) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (5) Paragraph 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKN” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (minor infractions). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. 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 a narrative reason change. 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 an honorable discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Minor Infractions),” and the separation code is “JKN.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends PTSD affected behavior which ultimately led to the discharge. The applicant provided several medical documents indicating problems listed or assessed as: PTSD symptoms; alcohol abuse; dysthymic disorder (depressive neurosis); insomnia related to AXIS I/II mental disorder (nonorganic); AXIS IV psychosocial and environmental problems; AXIS V, Global Assess of Functioning (GAF) scale (100-0); and partner relational problem. The AMHRR is void of a mental status evaluation. The applicant contends the applicant should have received medical treatment and received a rehabilitation transfer. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. This requirement applied to specific separations. At the time of the applicant’s separation, the requirement for a rehabilitative transfer or waiver did not apply to the applicant’s case. Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. 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 veteran benefits and 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. 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: depression diagnosed on active duty and PTSD-spectrum symptoms associated with active duty service documented in VA records. Additionally, the applicant asserts PTSD, 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 depression and PTSD-spectrum symptoms (although no clear formal diagnosis of latter). (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the evidence supports partial psychiatric mitigation associated with the circumstances of discharge. Specifically, substance abuse is part of the natural history of depression and trauma-related disorders, so there is a nexus between these conditions and applicant’s substance related offenses. These conditions are also associated with irritability and disengagement from responsibilities, which creates a nexus with offenses associated with disrespect and failure to obey. However, mitigation is considered partial because current honorable discharge for minor misconduct already appears proper and equitable given the totality of disciplinary issues. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s PTSD spectrum symptoms outweighed the narrative reason for the discharge for the aforementioned reason(s). PTSD mitigates but does not wholly excuse the applicant’s responsibility for the multiple istances of misconduct forming the basis of separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and determined the narrative reason is proper and equitable as the applicant is accountable for the misconduct. The discharge is proper and equitable. (2) The applicant contends PTSD affected behavior which ultimately led to the discharge. The current characterization of service is honorable, there is no further relief available with respect to characterization. Liberal consideration was applied to the narrative reason and it was determined PTSD did mitigate the misconduct, but did not fully excuse the misconduct; the applicant was involuntarily separated for misconduct and the fraction of responsibility remaining with the applicant makes “Minor Infractions” equitable. (3) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record during board proceedings. (4) The applicant contends the applicant should have received medical treatment and received a rehabilitation transfer. The Board considered this contention and determined records do not show a denial or lack of treatment. The applicant was properly and equitably discharged. (5) The applicant contends an upgrade would allow veteran 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. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the 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 determined the discharge is proper and equitable as a prior ADRB has upgraded the discharge with a Character of Honorable; therefore, no further relief is warranted. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code. The applicant was involuntarily separated for misconduct. The applicant’s PTSD mitigated but did not wholly excuse the applicant’s responsibility for the misconduct making “minor infractions” the equitable narrative reason. (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 AR20210002114 1