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, when the applicant’s squad were all killed before the applicant went into combat, the applicant began to panic and use drugs. The applicant was not absent without leave (AWOL) but stayed in the applicant’s room for eight days on post. The applicant’s parent called and when the applicant answered it was as if the parent heard a ghost. The applicant’s unit was deployed, and the applicant was in the rear, preparing to deploy, when the applicant received the news, the squad had been killed by an improvised explosive device (IED). The applicant panicked and went into a deep depression. The applicant remained in the barracks for eight days, crying for the fellow Soldiers. The applicant received A-15 papers, but the applicant did not want to be charged. The command kicked the applicant out with a plea. During the eight days the command said the applicant was AWOL, the applicant was in the applicant’s barracks room the whole time. The applicant was using drugs to cope with everything. The applicant was young and very scared, being the only son in the family. The applicant is recovering from depression, but the applicant is a better person. The applicant graduated from college and has plans to reenlist. b. Board Type and Decision: In a records review conducted on 4 April 2023, and by a 4-1 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 December 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 November 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive twice for marijuana on a urinalysis, dated 10 August and 1 October 2008. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 November 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 26 November 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 October 2007 / 2 years, 18 weeks b. Age at Enlistment / Education / GT Score: 21 / Some College / 95 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 1 year, 1 month, 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: Company Grade Article 15, dated 21 August 2008, for on three occasions, failing to go at the time prescribed to the appointed place of duty (18 July and 4 August 2008 (two occasions)), and behaving with disrespect toward Captain L. B., a superior commissioned officer, by rolling the eyes and speaking with an attitude (6 August 2008). The punishment consisted of a reduction to E-2; forfeiture of $352 pay; and extra duty and restriction for 14 days. Electronic Copy of DD Form 2624, dated 26 August 2008, reflects the applicant tested positive for THC 87 (marijuana), during a Probable Cause (PO) urinalysis testing, conducted on 10 August 2008. Electronic Copy of DD Form 2624, dated 10 October 2008, reflects the applicant tested positive for THC 41 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 1 October 2008. Report of Mental Status Evaluation, dated 16 October 2008, reflects the applicant was cleared for administrative separation. The applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. Field Grade Article 15, dated 3 November 2008, for wrongfully using marijuana (between 2 September and 1 October 2008). The punishment consisted of a reduction to E-1; forfeiture of $673 pay per month for two months; and extra duty and restriction for 45 days. Personnel Action form, reflect the applicant’s duty status changed from “Present for Duty (PDY),” to “Absent Without Leave (AWOL),” effective date 2 December 2008. Two Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 22 days (AWOL, 2 December 2008 – 23 December 2008) / NIF j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, dated 8 October 2008, the examining medical physician noted in the comments section: Headaches; Adjustment disorder, sleep problem, depression, treated by Behavioral Health, Cedar Springs as inpatient and outpatient; individual treatment; also, drug use. Report of Medical Examination, dated 8 October 2008, the examining medical physician noted in the summary of defects and diagnoses section: Adjustment disorder, substance abuse, and headaches. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is recovering from depression, but the applicant is a better person. The applicant graduated from college and has plans to reenlist. 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 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 an upgrade to honorable. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends depression affected behavior which ultimately led to the discharge. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service depression and adjustment disorder. The record shows the applicant underwent a medical examination on 8 October 2008 and the medical examining physician noted adjustment disorder, depression, sleep problems, headaches, and drug abuse. The record shows the applicant underwent a mental status evaluation (MSE) on 16 October 2008, which indicates the applicant was could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. The MSE did not indicate a diagnosis. The MSE and medical examination were considered by the separation authority. The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends recovering from depression and being a better person; graduating from college; and having plans to reenlist. 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 applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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. Additionally, the applicant asserts 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 that applicant appeared to be experienced noteworthy depression at the time of 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 there is clear evidence of depression (primarily diagnosed as adjustment disorder but apparently of a significant nature given descriptions) while in active service. Under liberal consideration guidelines, depression mitigates cannabis use/positive UA serving as the primary basis of separation; substance misuse is associated with self-medication of depressive symptoms. Depression also generally mitigates AWOL behavior and failure to report, as depression is associated with avoidance of highly stressful circumstances. The advisor also notes some apparent discrepancies in applicant’s asserted timeline of events leading to the discharge and seeming lack of engagement by the applicant in applicant’s treatment that could have potentially helped the applicant’s circumstances. (4) Does the condition or experience outweigh the discharge? No. While partial mitigation for Marijuana use x 2 for depression was accepted by the board, additional misconduct found in the file – malingering to avoid deployment and disrespect towards a commissioned officer – was not mitigated. The board concluded that the timeline of events did not support an index trauma that occurred prior to the malingering and disrespect misconduct. Even if mitigated the applicant’s remaining responsibility for the marijuana use 2x, AWOL plus the unmitigated misconduct of malingering and disrespect make a General Characterization of Service equitable. b. Response to Contention(s): (1) The applicant contends depression affected behavior which ultimately led to the discharge. The Board considered this contention and found the applicant was diagnosed with depression; however, the Board determined the applicant’s additional misconduct, not included in the basis of separation, of malingering to avoid deployment and disrespect towards a commissioned officer, is not outweighed by applicant’s depression. Thus, the applicant was properly and equitably discharged. (2) 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 additional misconduct, not included in the basis of separation, of malingering to avoid deployment and disrespect towards a commissioned officer, is not outweighed by applicant’s depression. Thus, the applicant was properly and equitably discharged. (3) The applicant contends recovering from depression and being a better person; graduating from college; and having plans to reenlist. The ADRB is authorized to consider post- service factors in the recharacterization of a discharge. 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 applicant’s post service accomplishments do not outweigh the discharge, and an upgrade is not warranted. 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 because, despite applying liberal consideration of all the evidence before the Board, the applicant’s depression did not excuse or mitigate the offenses of malingering to avoid deployment and disrespect towards a commissioned officer. There is also no indication that meritorious service required for an honorable discharge occurred during the service record. 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 AR20210002122 1