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, it has been seven years since the discharge and the applicant desires to use the GI Bill to pursue a degree, which has 14 months remaining. The applicant was told they were not qualified without an honorable discharge. b. Board Type and Decision: In a records review conducted on 28 March 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's dysthymic disorder outweighed the medically mitigated marijuana use that resulted in the applicant's discharge for ASAP failure. 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: 2 July 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 June 2009 (2) Basis for Separation: The applicant was informed of the following reasons: Failed the ASAP Program. (3) Recommended Characterization: Honorable (4) Legal Consultation Date: On 9 June 2009, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 11 June 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 September 2005 / 6 years b. Age at Enlistment / Education / GT Score: 29 / GED / 111 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 3 years, 9 months, 7 days d. Prior Service / Characterizations: RA, 26 September 2005 - 4 September 2007 / HD e. Overseas Service / Combat Service: SWA / Iraq (11 February 2007 - 22 April 2008) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, ICM-CS, GWOTSM, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 23 December 2008, reflects the applicant tested positive for THC 137 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 15 December 2008. Military Police Report, dated 6 January 2009, reflects the applicant was apprehended for: Control Substance Violations, use of marijuana determined by urinalysis test (on post). Electronic Copy of DD Form 2624, dated 5 February 2009, reflects the applicant tested positive for THC 118(marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 30 January 2009. Summary of Army Substance Abuse Program Rehabilitation Failure (memo), dated 11 February 2009, reflects the service member's behavior toward changes and failure to accept responsibility has resulted in unsatisfactory participation in rehabilitation treatment. The service member was-afforded many opportunities to receive/obtain help. This lack of motivation and continued aberrant behavior are indicative of commitment failure to treatment issues. IAW AR 600-85, the service member meets the criteria for Chapter 9 UCMJ action. FG Article 15, dated 12 February 2012, for wrongfully using marijuana (between 15 November 2008 and 30 January 2009). The punishment consisted of a reduction to E-2; forfeiture of $350 pay per (suspended); and extra duty and restriction for 45 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 15 April 2009, reflects the suspended portion of the punishment imposed on 17 February 2009, was vacated for: Article 112, for wrongfully use marijuana on or about 24 January 2009. Two Developmental Counseling Forms, for acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, dated 25 February 2009, the examining medical physician noted in the comments section Bipolar. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; Two DD Form 293; VA Certificate of Eligibility; Army review Board Agency letter. 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 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. (6) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 "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. 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 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 Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 26, separation code, as "JPD;" and, in block 28, narrative reason for separation, as Alcohol Rehabilitation Failure. The discharge packet confirms the separation authority approved the discharge by reason of Rehabilitation Failure based on the applicant's repeated use of marijuana. Soldiers processed for Rehabilitation Failure based on drug use will be assigned a separation code of "JPC" and a narrative reason for separation of "Drug Rehabilitation Failure. The evidence of Army Military Human Resource Record (AMHRR) indicates on 11 February 2009, the service member's behavior toward changes and failure to accept responsibility has resulted in unsatisfactory participation in rehabilitation treatment. The service member was- afforded many opportunities to receive/obtain help. This lack of motivation and continued aberrant behavior are indicative of commitment failure to treatment issues. IAW AR 600-85, the service member meets the criteria for Chapter 9 UCMJ action. The applicant contends it has been seven years since the discharge. The applicant's issue about an upgrade based on the passage of time was carefully considered. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both were improper or inequitable. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 (dysthymic disorder). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence of noteworthy mood concerns on active duty and service connection for dysthymic disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined That the applicant's DD mitigates the applicant's wrongful marijuana use that is the basis for the applicant's referral to ASAP and subsequent ASAP failure because the applicant's medical records reflect that the applicant's DD was pre-existing and excerbated by the applicant's military service and the VA has service connected the applciant for the DD. Therefore, the applicant's DD mitigates the applicant's drug use. The applicant's substance misuse is mitigated by the nature of long- standing mood symptoms, given that self-medication is part of the natural history and sequelae of depression and mood disorders more generally. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's dysthymic disorder outweighed the medically mitigated marijuana use that resulted in the applicant's discharge for ASAP failure. b. Response to Contention(s): (1) The applicant contends it has been seven years since the discharge. The Board considered this contention and determined that an upgrade of the characterization of service is warranted due to the applicant's dysthymic disorder outweighed the medically mitigated marijuana use that resulted in the applicant's discharge for ASAP failure. (2) The applicant contends an upgrade would allow 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 the discharge is inequitable based on the applicant's dysthymic disorder outweighed the medically mitigated marijuana use that resulted in the applicant's discharge for ASAP failure. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's dysthymic disorder outweighed the medically mitigated marijuana use that resulted in the applicant's discharge for ASAP 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 RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation and the applicant's substance abuse issues and dysthymic disorder is service limiting. 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 AR20210002136 1