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, suffering from severe post-traumatic stress disorder (PTSD) upon returning from the applicant's second tour as a combat Infantryman in Iraq, which related to the applicant's discharge for misconduct. The applicant did not begin to seek treatment until 21 February 2014 because it was several years before the applicant understood what was happening. The Department of Veterans Affairs (VA) Decision, provided, sets forth the reasons why the VA found the applicant's discharge to be honorable. The VA disability rating decision established PTSD was a severe service-connected condition. The applicant deployed for a second time to a combat tour, despite the command knowing the applicant had PTSD. The condition was noted in the applicant's military medical records. Post- traumatic stress disorder was the cause of the applicant's drug use and behavioral issues. After the applicant's discharge, the psychological damage caused to combat veterans has been more fully recognized. During the applicant's service, the problems should have been addressed instead of discharging the applicant because of administrative expediency. b. Board Type and Decision: In a records review conducted on 19 May 2023, and by a 5-0 vote, the Board determined the discharge is improper. The applicant's separation packet includes two electronic DD Forms 2624 (Specimen Custody Document for Drug Testing), which show one of the urinalysis tests coded "CO," which indicates "Competence for Duty/Command Directed/Fitness for Duty." The government introduced these documents into the discharge process. The Competence for Duty/Command Directed/Fitness for Duty Testing is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. 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: 18 July 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 December 2005 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used D-methamphetamine, a controlled substance between 7 and 14 June 2005; The applicant wrongfully used amphetamine, controlled substance, between 28 September and 4 October 2005; The applicant wrongfully used D-methamphetamines, a controlled substance, between 28 September and 4 October 2005; The applicant wrongfully used D-methamphetamines, a controlled substance, between 26 October and 1 November 2005; The applicant failed to report to the place of duty on 15 and 22 August, 15 and 16 September, and 7 November 2005; and The applicant broke restriction on 19 September 2005. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: The AMHRR contains an undated Election of Rights. (5) Administrative Separation Board: The applicant requested consideration of the case before an administrative separation board. On 10 January 2006, the applicant's case was referred to an administrative separation board, indicating the separation authority considered the applicant underwent a medical evaluation board (MEB), which recommended the applicant be referred to a physical evaluation board (PEB). On 6 June 2006, the administrative separation board convened and the applicant was represented by counsel. The applicant was absent without leave (AWOL) at the time the board convened. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. On 21 June 2006, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 21 June 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 January 2003 / 4 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 11 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (20 January 2004 - 14 February 2005) f. Awards and Decorations: VUA, NDSM, GWOTEM, GWOTSM, ASR, OSR-2, CIB, OSB-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Field Grade Article 15, dated 9 September 2005, for wrongfully using D-methamphetamine (between 7 and 14 June 2005). The punishment consisted of a reduction to E-2, reduction to E-1 (suspended); forfeiture of $617 pay per month for two months; and extra duty and restriction for 45 days. Report of Mental Status Evaluation, dated 12 October 2005, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. Electronic Copy of DD Form 2624, dated 13 October 2005, reflects the applicant tested positive for AMP 5292 (amphetamine), DMET 97.4 percent (D-methamphetamine), and MET 10514 (methamphetamine), during a Command Directed (CO) urinalysis testing, conducted on 4 October 2005. Developmental Counseling Form, dated 1 November 2005, regarding positive results for a urinalysis conducted on 4 October 2005. The test was directed as a result of the applicant breaking restriction. Receipt for Inmate or Detained Person, dated 8 November 2005, reflects the applicant was detained by the Office of the Provost Marshal for violation of Article 92, Failure to obey a general order (possession of drug paraphernalia). Electronic Copy of DD Form 2624, dated 10 November 2005, reflects the applicant tested positive for DMET 97.1 percent (D-methamphetamine) and MET 1003 (methamphetamine), during an Inspection Unit (IU) urinalysis testing, conducted on 1 November 2005. Report of Result of Trial reflects the applicant was tried in a Summary Court-Martial on 2 December 2005. The applicant was charged with eight specifications. The summary of offenses, pleas, and findings: Violation of Article 86, Failure to report and Absence Without Leave: On 12 July 2005; not guilty, inconsistent with the plea, On 22 August 2005; guilty, consistent with the plea; and On 16 September 2005; guilty, consistent with the plea. From 7 to 8 November 2005; guilty, consistent with the plea. Violation of Article 112a: Between 28 September and 4 October 2005, wrongfully use amphetamine; guilty, consistent with the plea; Between 28 September and 4 October 2005, wrongfully use methamphetamine; guilty, consistent with the plea; and Between 26 October and 1 November 2005, wrongfully use methamphetamine; guilty, consistent with the plea. Violation of Article 134, Breaking restriction on 19 September 2005; guilty, consistent with the plea. Sentence: To be reduced to E-1; forfeiture $400 pay; and confinement for 30 days. Memorandum, dated 12 December 2005, reflects the efforts by the command to assist the applicant with disciplinary issues, to include, but not limited to, enrolling the applicant in the Army Substance Abuse Program (ASAP); providing escorts for the applicant to prevent drug use; and noncommissioned officers staking out check cashing establishments to detain the applicant and return the applicant to the unit. DA Form 1574, dated 6 June 2006, reflects the administrative separation board found the applicant wrongfully used illicit drugs on numerous occasions, failed to report on numerous occasions, and did break restriction. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 206 days: AWOL, 7 November 2005 - 7 November 2005 / Returned to Unit CMA, 2 December 2005 - 26 December 2005 / Released from Confinement AWOL, 14 January 2006 - 12 July 2006 / NIF j. Behavioral Health Condition(s): (1) Applicant provided: A copy of VA Administrative Decision, undated, reflecting the applicant's service from 24 January 2003 to 18 July 2006, is considered honorable for VA purposes. The applicant was diagnosed with severe PTSD and it was recommended the applicant not deploy again. Regardless of the recommendation, the applicant was sent back to Iraq from February to May 2005. A copy of the VA Rating Decision, dated 6 February 2015, reflecting the applicant was rated 70 percent service-connected disabled for PTSD with major depressive disorder. (2) AMHRR Listed: Physical Profile, dated 9 May 2005, reflects the applicant was on permanent "3" profile for the following medical conditions: PTSD Major Depression, single episode Hearing Loss Right Ear with Tinnitus Report of Medical History, dated 27 June 2005, the examining medical physician noted in the comments section: PTSD, depression, anxiety. Report of Medical Examination, dated 28 June 2005, the examining medical physician noted in the summary of defects and diagnoses section: PTSD. Recommendations psychiatric care, pending medical evaluation board for retention. Medical Evaluation Board proceedings, dated 2 September 2005, determined the following medical conditions did not meet medical retention standards: AXIS I - PTSD, severe; Major Depression, single episode; AXIS III - Hearing Loss Right Ear with Tinnitus; AXIS IV - Combat deployed, severe multiple outside the perimeter experiences; and AXIS V - Fluctuating 45-70, depending on exposure to military duties and tasks. The medical evaluation board (MEB) recommended the applicant be referred to a physical evaluation board (PEB). The MEB includes a Report of Medical Evaluation Board, which details the applicant's medical history of diagnoses. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, with continuation sheet; VA Administrative Decision; VA Rating Decision; PTSD Disability Benefits Questionnaire; VA Disability Benefits letter; Army Review Boards Agency Case Tracking System form; U.S. House of Representatives Casework Authorization Form, Privacy Release. 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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 600-85, paragraph 10-12a 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 results of command-directed drug or alcohol testing that are inadmissible under the MRE. 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) Paragraph 3-8a states a Soldier is entitled to an honorable characterization of service if limited-use evidence (see AR 600-85) is initially introduced by the Government in the discharge proceedings, and the discharge is based upon those proceedings. The separation authority will consult with the servicing Judge Advocate in cases involving limited use evidence. (5) 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. (6) 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. (7) 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. 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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse). 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 nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 Applies to: Person separated from last period of service with a nonwaiverable 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 contends PTSD affected behavior, which ultimately led to the discharge. The applicant provided several medical documents indicating a diagnosis of PTSD, with major depressive disorder (also claimed as anxiety). The VA rated the applicant 70 percent service- connected disabled for PTSD. The applicant's AMHRR shows an MEB, conducted on 2 September 2005, found the applicant did not meet medical retention standards for PTSD, severe, and major depression, single episode, and recommended the case be referred to a PEB. The record shows the applicant underwent a mental status evaluation (MSE) on 12 October 2005, which indicates the applicant was able to understand and participate in any administrative or judicial proceedings; the applicant was mentally responsible, was able to recognize right from wrong, and met retention standards. The MSE did not indicate a diagnosis. The MEB and MSE were considered by the separation authority. The applicant contends the command should have been addressed the applicant's problems instead of administratively discharging the applicant. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by enrolling the applicant into ASAP, providing counseling, and the imposition of non-judicial punishment. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The applicant contends the VA has determined the applicant's service was honorable. The applicant provided a VA Administrative Decision, which reflects the VA determined the period of service from 24 January 2003 to 18 July 2006, as honorable. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than used by the Army when determining a member's discharge. 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, Anxiety, Depression and PTSD. (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, Depression and Chronic PTSD. Applicant is also service connected by the VA for the PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant was diagnosed in service with an Adjustment Disorder, Anxiety, Depression and Chronic PTSD. Applicant is also service connected by the VA for the PTSD. Applicant's behavioral health conditions provide partial mitigation for the basis of separation. Given the nexus between PTSD and self-medicating with substances, applicant's PTSD likely contributed to the drug use. Also given the nexus between PTSD and avoidance, applicant's PTSD mitigates the FTRs. Breaking restriction is not mitigated since none of applicant's behavioral health conditions interfere with the ability to distinguish between right and wrong and act in accordance with the right. (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, while the applicant's BH conditions mitigate the applicant's drug use and FTRs, the available evidence did not support a conclusion that the applicant's Adjustment Disorder, Anxiety, Depression and PTSD outweighed the medically unmitigated basis for applicant's separation - breaking restriction. b. Response to Contention(s): (1) The Board determined based on its review of the applicant's record that the applicant's separation packet includes limited use evidence that warrants an upgrade to Honorable. The applicant was separated, in part, based on the Command's consideration of urinalysis tests coded "CO" ("Competence for Duty/Command Directed/Fitness for Duty" which violates AR 600-85. Therefore, the Board determined that an Honorable characterization of service is warantd. (2) The applicant contends PTSD affected behavior, which ultimately led to the discharge. The Board considered this contention, but ultimately voted to upgrade the discharge based on the Command's limited use violation pursuant to AR 600-85. (3) The applicant contends the command should have been addressed the applicant's problems instead of administratively discharging the applicant. The Board considered this contention, but ultimately voted to upgrade the discharge based on the Command's limited use violation pursuant to AR 600-85. (4) The applicant contends good service, including a combat tour. The Board considered this contention, but ultimately voted to upgrade the discharge based on the Command's limited use violation pursuant to AR 600-85. (5) The applicant contends the VA has determined the applicant's service was honorable. The Board noted that the ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. The Board considered the applicant's contention, but ultimately voted to upgrade the discharge based on the Command's limited use violation pursuant to AR 600-85. c. The Board determined the discharge was improper due to the Command's limited use violation. Accordingly, the Board voted to grant relief pursuant to AR 600-85. 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 to change the applicant's characterization of service to Honorable due to the Command's introduction of limited use evidence during separation proceedings. 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 AR20210002127 1