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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant's discharge was inequitable because of an isolated incident which occurred in the last 24 months of service. The applicant served in theater of operation in Afghanistan with no incident of misconduct. Once the applicant redeployed, the applicant faced many challenges coping with returning home. The applicant had a knee surgery once the applicant returned from deployment which required the applicant to be on convalescent leave for a period of time. While on convalescent leave, the applicant was required to be screened for height and weight at the time giving the applicant no time to get back into shape. The applicant was flagged immediately, and all favorable actions were denied. This caused the applicant to have anxiety and other mental issues. The applicant was given the opportunity to receive counseling for anxiety and other mental issues. In addition, the applicant was put on medication to help cope with health issues. While on convalescent leave, the applicant was harassed by the chain of command for not being able to conduct physical fitness with the unit. The applicant was waiting to be chaptered for weight in accordance with AR 600-9, which takes only three months to process the chapter, but was prolonged for over a year. During this time, the unit deployed and redeployed from Afghanistan with no progress in the completion of the chapter. This caused personal issues at home and work which affected the applicant. The applicant was unable to plan an exit from the military because the applicant was waiting on the chapter, which never was completed due to the chain of command. This caused the applicant's family to leave which left the applicant with no moral support. The chain of command did not fulfill their duty to out-process the applicant correctly. This caused the applicant to have an emotional break down causing the applicant to go AWOL. Instead of facing a chapter 18 for weight control, the applicant faced a chapter 10 in lieu of court-martial. The applicant took the chapter 10 because enough time had passed, and the applicant had had enough with the chain of command and the military taking its time. b. Board Type and Decision: In a records review conducted on 9 March 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's Adjustment Disorder, Anxiety, and Depression diagnoses outweighing applicant's misconduct of marijuana use and possession of a controlled substance. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 12 August 2013 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 17 May 2013, the applicant was charged with: Charge I: Violating Article 86, UCMJ. The Specification: The applicant did at or near Fort Campbell, Kentucky, on or about 11 February 2013, without authority, absent oneself from the unit and did remain so absent until being apprehended on or about 3 May 2013. Charge II: Violating Article 92, UCMJ. Specification 1: The applicant having knowledge of a lawful order issued by the Secretary of the Army, to wit: Army Directive 2012-14, paragraph 4, dated 29 May 2012, an order which was the duty to obey, did at Fort Campbell, Kentucky, on or about 14 November 2012, fail to obey the same by wrongfully possessing a controlled substance analogues and introducing a controlled substance analogues into an installation under the control of the Army. Specification 2: The applicant did, at or near Fort Campbell, Kentucky, on or about 14 November 2012, fail to obey a lawful general regulation, to wit; paragraph 4a, Fort Campbell Regulation 210-1, dated 15 April 2012, by wrongfully possessing drug abuse paraphernalia. Charge III: Violating Article 112a, UCMJ. The Specification: The applicant did at or near Corpus Christie, Texas, between on or about 3 April 2013 and on or about 3 May 2013, wrongfully use Marijuana. (2) Legal Consultation Date: 22 May 2013 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 29 May 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 October 2010 / 5 years b. Age at Enlistment / Education / GT Score: 21 / High School Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25U10, Signal Support System Specialist / 5 years, 3 months, 27 days d. Prior Service / Characterizations: RA, 15 January 2008 - 4 October 2010 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (14 March 2010 - 7 March 2011) f. Awards and Decorations: ACM-CS, ARCOM, VUA, AGCM, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation, dated 20 November 2012, investigation established probable cause to believe the applicant committed the offense of Failure to Obey a General Order when the applicant was found in possession of Synthetic Cannabinoids and drug paraphernalia. The applicant was not titled for Wrongful Possession/Use of a Controlled substance, based on the Action Commander's intent and because confirmative testing is required to ascertain the presence of controlled substances, or lack thereof. CPT S. R. R., Trial Counsel, opined probable cause existed to believe the applicant committed the offense of Failure to Obey a General Order. Five Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "Absent Without Leave (AWOL)," effective 11 February 2013; From "AWOL" to "Dropped From Rolls (DFR)," effective 20 February 2013; From "DFR" to "PDY," effective 3 May 2013; From "PDY"," to "Confined by Civil Authorities (CCA)," effective 7 May 2013; and, From "CCA" to "PDY," effective 16 May 2013. Corpus Christi Police Department Arrest Report, dated 29 April 2013, reflects on 29 April 2013 at approximately 0229 hours, an officer was dispatched to the area of Home and Cambridge in reference to a disturbance. Upon arrival, the officer made contact with the applicant. The applicant advised the officer they had been drinking with some friends and it got a little loud which is why the neighbors may have called. The officer conducted a wanted check on the applicant. The applicant had an active federal warrant for military desertion. The applicant was arrested for the warrant and transported to CDC without incident. Electronic Copy of DD Form 2624, dated 13 May 2013, reflects the applicant tested positive for THC 703 (marijuana), during an Inspection Other (IO) urinalysis testing, conducted on 3 May 2013. Charge Sheet as described in paragraph 3c(1) above. i. Lost Time / Mode of Return: 88 days: AWOL, 11 February 2013 - 2 May 2013 / Apprehended by Civil Authorities CCA, 7 May 2013 - 15 May 2013 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: Texas A & M University Psychological Disability Verification Form, dated 20 January 2014, reflects the applicant was diagnosed with Axis I: chronic episodic depression, Axis II: Anxiety and Axis III: PTSD. Chronological Record of Medical Care reflects the applicant suffered from anxiety and depression and prescribed medication. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; third-party letter; DD Form 214; five DA Forms 4856; Memorandum Request Initiation Of Administrative Separation; two DA Forms 5500; Memorandum Recommendation for Con-Leave; two Memorandums Weight Control Program; Memorandum Mandatory Pre Chapter G.I. Bill Benefits Counseling/Briefing. 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) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends good service, including a combat tour. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends while being on convalescent leave, the applicant was flagged for height and weight and not given a chance to get back in shape. This caused the applicant anxiety. The applicant's Army Military Human Resource Record (AMHRR) does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends while being on convalescent leave, the applicant was harassed by the chain of command for not being able to conduct physical fitness with the unit. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant contends receiving counseling and being put on medication to help with the anxiety. The applicant provided Chronological Record of Medical Care which reflects the applicant suffered from anxiety and depression and was prescribed medication. The mental status evaluation was not contained in the AMHRR. The applicant contends while waiting to be chaptered out the Army, which took over a year, the applicant was not able to plan an exit from the military which caused the applicant to have an emotional break down and go AWOL. 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 third-party statement provided with the application speaks highly of the applicant. It recognizes the applicant's good conduct while serving in the Army. 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, 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, and Depression. The VA has service connected the applicant for Chronic Adjustment Disorder. There is no evidence that applicant's post service diagnosis of PTSD existed during military service or is related to military 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 was diagnosed in service with an Adjustment Disorder, Anxiety, and Depression. The VA has service connected the applicant for Chronic Adjustment Disorder. Post service, the applicant has been diagnosed with PTSD not associated with military trauma. Given applicant's in service diagnoses of Anxiety and Depression, as well as service connection for Chronic Adjustment Disorder, there is evidence of mitigating BH conditions that provide partial medical mitigation. There can be a nexus between Chronic Adjustment Disorder, Anxiety, and Depression and self-medicating with substances, and the medical evidence suggests that applicant's BH conditions contributed to applicant's substance-related misconduct including the drug use and possession of drugs/paraphernalia. There is not a natural sequela between Chronic Adjustment Disorder, Anxiety, or Depression and going AWOL, so that misconduct is not mitigated. Finally, applicant's PTSD was diagnosed post-service and is not related to military service, so it provides no mitigation in applicant's case. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's Adjustment Disorder, Anxiety, and Depression outweighed the marijuana use and possession of a controlled substance basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) 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. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Adjustment Disorder, Anxiety, and Depression outweighing the applicant's marijuana use and possession of a controlled substance basis for separation. (3) The applicant contends while being on convalescent leave, the applicant was flagged for height and weight and not given a chance to get back in shape. This caused the applicant anxiety. The Board considered this contention and determined there is insufficient evidence to support the applicant was not given a chance to get back in shape as the applicant remained on Army Body Composition Program for over one year while unit tried to rehabilitate for height and weight requirements. (4) The applicant contends while being on convalescent leave, the applicant was harassed by the chain of command for not being able to conduct physical fitness with the unit. The Board considered this contention and determined there is insufficient evidence in the file to support this contention. The Board voted to upgrade the characterization of service to General Under Honorable Conditions as applicant's BH conditions outweighed the basis for separation. (5) The applicant contends receiving counseling and being put on medication to help with the anxiety. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Adjustment Disorder, Anxiety, and Depression outweighing the applicant's marijuana use and possession of a controlled substance basis for separation. (6) The applicant contends while waiting to be chaptered out the Army, which took over a year, the applicant was not able to plan an exit from the military which caused the applicant to have an emotional breakdown and go AWOL. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Adjustment Disorder, Anxiety, and Depression outweighing the applicant's marijuana use and possession of a controlled substance basis for separation. c. The Board determined that the characterization of service was inequitable based on the applicant's Adjustment Disorder, Anxiety, and Depression diagnoses outweighing applicant's misconduct of marijuana use and possession of a controlled substance. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. However, the applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's Adjustment Disorder, Anxiety, and Depression mitigated the applicant's misconduct of marijuana use and possession of a controlled substance. Thus, the prior characterization is no longer appropriate. The AWOL misconduct, however, is not medically mitigated, and the totality of service with this unmitigated misconduct does not rise to the level of meritorious service required for an Honorable Discharge. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD, 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: General, Under Honorable Conditions 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 AR20210002193 1