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 and change to the narrative reason. The applicant seeks relief contending, in effect, the applicant wishes to obtain education benefits to better oneself and cannot do this with a general (under honorable conditions) discharge. The applicant had good conduct the whole time the applicant was in the service except for when the applicant returned from Afghanistan. The applicant did see a counselor as soon as the applicant returned from deployment for about four to six weeks and the applicant believes the applicant was diagnosed with PTSD however, the applicant was so angry from deployment the applicant believes it did not do any good. This was the only blight on the applicant’s service record. The applicant realizes making the mistake to use drugs while in the service, however the applicant is trying to better oneself now through anger management classes and counseling through the VA. As soon as the chain of command found out about the drug use, the applicant was sent directly to out-process in the ACAP program, and no other help was given to the applicant. b. Board Type and Decision: In a records review conducted on 8 December 2022, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 24 April 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 February 2010 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 2 months, 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (2 December 2009 – 17 February 2010) f. Awards and Decorations: ACM-CS, ARCOM, AAM, VUA, NDSM, GWOTSM, ASR, OSR-2, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Orders 088-0002, dated 29 March 2013, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 24 April 2013 from the Regular Army. DD Form 214, block 6 reflects the applicant had a Reserve Obligation Termination Date of 1 December 2017; block 9 reflects the applicant was transferred to USAR Con Gp (Reinf); and, block 23 reflects the type of separation as Release From Active Duty. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Conditions: The applicant provided a copy of VA Decision Letter, dated 13 April 2015, which reflects the applicant was granted 70 percent for Post-Traumatic Stress Disorder. The applicant provided a letter from the VHA Outpatient Clinic, dated 25 October 2016, which reflects the applicant fully participated in and completed a course of Anger Management group treatment for veterans with Post-traumatic Stress Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Department of VA Benefit Letter; VHA Outpatient Clinic Letter; DD Form 214; VA Fax Cover Letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is trying to better oneself through anger management classes and counseling through the VA. 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 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant’s Army Military Human Resource Record (AMHRR) is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated with the applicant’s electronic signature. The DD Form 214 indicates the applicant was released from active duty under the provisions of AR 635-200, Chapter 14, paragraph 14-12c(2), by reason of Misconduct (Drug Abuse), with a characterization of service of general (under honorable conditions). Based on the AMHRR, someone in the discharge process erroneously entered on the applicant’s DD Form 214, block 23, type of separation as “Release From Active Duty,” and should read “Discharge.” The applicant contends the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Drug Abuse),” and the separation code is “JKK.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 applicant’s use of drugs was the only blight on the applicant’s service record. Army Regulation 635-200, paragraph 3-5c states circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends as soon as the chain of command found out about the drug use, the applicant was sent directly to out process in the ACAP program, and no other help was given. 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 AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. Army Regulation 635- 200, paragraph 17d(2) entitled counseling and rehabilitation, states the separation authority may waive the rehabilitative requirements when it is determined reassignment is not feasible due to commuting distance; or Soldier would create serious disciplinary problems, hazard to the military mission, or affect unit readiness; or rehabilitation would not produce a quality Soldier. The applicant contends being diagnosed with Post-Traumatic Stress Disorder by the VA. The applicant provided a copy of VA Decision letter, dated 13 April 2015, which reflects the applicant was granted 70 percent for Post-Traumatic Stress Disorder. The applicant provided a copy of a letter from the VHA Outpatient Clinic, dated 25 October 2016, which reflects the applicant fully participated in and completed a course of Anger Management group treatment for veterans with Post-Traumatic Stress Disorder. The AMHRR does not contain a mental status evaluation. 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. The applicant is trying to better oneself through anger management classes and counseling through the VA. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 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, and bipolar disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s Adjustment Disorder, Anxiety, Depression, and PTSD existed during 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’s PTSD mitigates the applicant’s drug use offense given the nexus between PTSD and self-medication with substances. While the full facts and circumstances of applicant’s separation are not contained in his file, the medical record suggests the following misconduct: wrongful use of opioids, adultery, theft less than $500, not in place of duty, and assault. With the separation packet Not In File, the board made a finding of fact that the Separation Authority considered the additional misconduct at the time of separation for purposes of characterization of service. Given the nexus between PTSD, self-medicating with substances, and avoidance, there may have been an association between applicant’s PTSD and wrongful use of opioids and the FTR. The remaining misconduct is not mitigated by any of the applicant’s BH conditions due to there being no natural sequelae between the conditions and the conduct. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, to include the opinion of the Board’s Medical Advisor, the Board determined that while the applicant’s PTSD mitigates the misconduct of wrongful use of opioids, and FTR, the evidence did not support a conclusion that the applicant’s PTSD outweighed the remaining misconduct – adultery, theft, and assault. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and voted not to change the applicant’s reason for discharge or accompanying SPD code as the there are no factors, out of the evidence considered by the Board, that outweigh the unmitigated misconduct – adultery, theft, and assault. Thus the discharge is proper and equitable. (2) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By engaging in adultery, theft, and assault, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and found it non-persuasive during its deliberations due to Army Regulation 635-200 which stipulates, in pertinent part, circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. Based on the unmitigated misconduct, the applicant’s discharge was proper and equitable. (4) The applicant contends as soon as the chain of command found out about the drug use, the applicant was sent directly to out process in the ACAP program, and no other help was given. The Board considered this contention and noted the applicant did not provide corroborating evidence of any arbitrary or capricious action taken by the applicant’s command to provide merit to the claim. Further, the Board determined that the Army has many legitimate avenues available to service members requesting assistance with drug use and unfair treatment by command, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant’s misconduct is not an acceptable response to dealing with such issues, thus the applicant was properly and equitably discharged (5) The applicant contends being diagnosed with Post-Traumatic Stress Disorder by the VA. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered this contention and determined that the applicant’s PTSD mitigates the applicant’s wrongful use of opioids and FTR, but there is no nexus between the applicant’s PTSD and the adultery, theft, or assault misconduct. Thus the discharge is proper and equitable. (6) The applicant contends an upgrade would allow educational benefits through the GI Bill, and a desire to pursue anger management classes and counseling through the VA. 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 that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the 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 not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, it determined that while the applicant’s PTSD mitigates the misconduct of wrongful use of opioids, and FTR, the evidence did not support a conclusion that the applicant’s PTSD outweighed the remaining misconduct – adultery, theft, and assault. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and 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 PTSD is service limiting. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210002271 1