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, the discharge was improper because leadership never considered the applicant's drug issues before the discharge were because of multiple deployments. The applicant suffered from painful injuries from the first deployment and sought medical treatment, leading to mental health issues. The applicant contends good service, including a combat tour. The applicant contends family issues affected behavior and the chain of command never provided support before the discharge. b. Board Type and Decision: In a records review conducted on 14 March 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and applicant's PTSD and TBI diagnoses mitigating applicant's marijuana use. 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: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 18 March 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 August 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana between (2 and 31 March 2007); and violating the battalion's pass policy, by traveling to the Netherlands without a valid pass. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 7 August 2007 (5) Administrative Separation Board: On 4 August 2007, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 5 March 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 September 2004 / 4 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 118 c. Highest Grade Achieved / MOS / Total Service: E-5 / 63H20, Tracked Vehicle Mechanic / 6 years, 10 months, 23 days d. Prior Service / Characterizations: RA, 26 April 2001 - 29 September 2004 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (2 November 2005 - 2 November 2006) f. Awards and Decorations: ARCOM, AAM, AGCM-2, NDSM, GWOTSM, ICM, NCOPDR, ASR, OSR / The applicant's AMHRR reflects award of the GWOTEM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: 1 August 2006 - 28 February 2007 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 12 April 2007, reflects the applicant tested positive for marijuana, a controlled substance THC 225, during an Inspection Unit (IU) urinalysis testing, conducted on 31 March 2007. Military Police Report, dated 10 May 2007, reflects the applicant was apprehended for: controlled substance violations, possession of marijuana, use of marijuana, on post (on post). Military Police Report, dated 12 June 2007, reflects the applicant was apprehended for: controlled substance violations, possession of hallucinogens, smuggling marijuana, smuggling hallucinogens and possession of marijuana (off post). FG Article 15, dated 18 June 2007, for wrongfully using marijuana, a controlled substance (on or about 2 and 31 March 2007). The punishment consisted of a reduction to E-4; forfeiture of $1,031 pay per month for two months; and extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Memorandum for the Record, SUBJECT: Treatment Summary, dated 22 January 2008, reflecting the applicant was diagnosed for the following illnesses: Attention Deficit Hyperactivity Disorder (ADHA), Predominately Hyperactive/Impulsive, Adjustment Disorder with Mixed Anxiety and Depressed mood. (2) AMHRR Listed: Report of Mental Status Evaluation, dated 26 July 2007, 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. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was diagnosed with: Post-traumatic stress disorder (PTSD) and cannabis abuse. Report of Medical Examination, dated 28 June 2007, the examining medical physician noted in the comments section: Adjustment Disorder with Anxiety. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 149; medical records. 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 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(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. 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 "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). 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-4 Applies to: Person separated from last period of service with a nonwaivable 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 the discharge was improper because leadership never considered the applicant's drug issues, multiple deployments and injuries from the first deployment, which led to the discharge. The applicant provided a Memorandum for the Record, SUBJECT: Treatment Summary, dated 22 January 2008, reflecting the applicant was diagnosed for the following illnesses: Attention Deficit Hyperactivity Disorder (ADHA), Predominately Hyperactive/Impulsive, Adjustment Disorder with Mixed Anxiety and Depressed mood. The AMHRR shows the applicant underwent an MSE, dated 26 July 2007, which indicates the applicant was mentally responsible and recognized right from wrong. The applicant was diagnosed with: PTSD and cannabis abuse. The MSE was considered by the separation authority. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. 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. 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 found that the applicant has the following potentially mitigating diagnoses/experiences: PTSD and TBI plus brief psychosis and multiple adjustment disorder diagnoses on active duty. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found compelling evidence for the presence of mental health conditions, PTSD and TBI, 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 the applicant has clear evidence of mental health concerns while on active duty to include PTSD and an apparent brief psychotic reaction that appears secondary, at least in part, to a reaction to antidepressant medication. However, such psychotic symptoms do not appear to have persisted. The veteran also has service connection for PTSD and TBI. His psychiatric conditions partially mitigate the nature of his offenses leading to discharge. Specifically, PTSD and TBI are often associated with self-medication of symptoms, therefore one can draw a nexus between his substance use behaviors and the presence of PTSD and TBI. However, PTSD and mild TBI typically do not result in the inability to differentiate right from wrong and adhere to the right, therefore neither willfully violating pass policy to travel out of country nor smuggling illicit substances, also noted in his disciplinary history, would be mitigated by such conditions. It is the advisor's opinion that the nature and severity of offenses outweigh the evidence of mitigation. and his GD appears proper and equitable. (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 and TBI outweighed the basis for applicant's separation - violating the battalion's pass policy, by traveling to the Netherlands without a valid pass - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the discharge was improper because leadership never considered the applicant's drug issues, multiple deployments and injuries from the first deployment, which led to the discharge. The Board considered this contention and determined the applicant's violation of the battalion's pass policy by traveling to the Netherlands without a valid pass is not mitigated or excused by applicant's multiple deployments, injuries, PTSD or TBI. Thus, the applicant was properly and equitably discharged. (2) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention and determined that the applicant's family issues does not mitigate the applicant's violation of the battalion's pass policy by traveling to the Netherlands without a valid pass as the Army affords many avenues to Soldier's including seeking separation for hardship. (3) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and applicant's PTSD and TBI diagnoses mitigating applicant's marijuana use. 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. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because length and quality of service, to include combat service, and applicant's PTSD and TBI diagnoses mitigating part of applicant's basis for separation, marijuana use. 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. 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 AR20210002161 1