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: 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 applicant's family believes the applicant deserves an honorable and the applicant desires to receive education benefits. The applicant has been diagnosed with TBI and PTSD and poor choices led to the applicant's discharge by turning to unhealthy habits in order to mask the issues, due to a misunderstanding. The applicant's military record reflects the applicant was an exemplary Soldier who defended the country and fellow brothers in arms and the applicant believes an upgrade is deserved. In a records review conducted on 24 March 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's combat-related PTSD and TBI that fully mitigated the wrongful drug use that was the basis for applicant's separation. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions) with a corresponding separation code of JKN. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635-200, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 20 December 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 December 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant, on two occasions, between 26 October and 14 November 2012, tested positive for illegal use of THC (marijuana), MET (methamphetamine) and AMP (amphetamine) all Schedule II, controlled substances. There is zero tolerance for illegal drug use in the Armed Forces and the commander recommended for the good of the service the applicant be separated (The AMHRR reflects the applicant tested positive for methamphetamine and amphetamine on 26 October 2012, and positive for marijuana on 26 October and 14 November 2012). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 10 December 2012, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 December 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 August 2009 / 4 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 2 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (1 July 2010 - 27 April 2011) f. Awards and Decorations: ACM-CS, AAM, NDSM, GWOTSM, NCOPDR, ASR, OSR, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 1 October 2012, for, on three occasions, failing to go at the time prescribed to the appointed place of duty (17, 19, and 20 September 2012) and failing to obey a lawful general regulation by wrongfully failing to shave. The punishment consisted of a reduction to E-3 (suspended); forfeiture of $462 pay (suspended); extra duty for 14 days; and an oral reprimand. Electronic Copy of DD Form 2624, dated 2 November 2012, reflects the applicant tested positive for DAMP 473 (amphetamine), DMETH 718 (methamphetamine), and THC 129 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 26 October 2012. Electronic Copy of DD Form 2624, dated 19 November 2012, reflects the applicant tested positive for THC 178 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 14 November 2012. Record of Supplementary Action Under Article 15, UCMJ, dated 20 November 2012, reflects the suspended portion of the punishment imposed on 2 October 2012, was vacated for: Article 86, failure to go at the time prescribed to the appointed place of duty, 0600 hours, PT Formation. Report of Mental Status Evaluation, dated 6 December 2012, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was screened for PTSD and mild TBI, with negative results. The mental status evaluation did not indicate any diagnosis. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 29 days: (NIF, 17 February 2010 - 17 March 2010) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a Problem Lists and Progress Notes, dated 27 February 2020, reflecting provisional diagnosis and/or diagnosis of Chronic Post-Traumatic Stress Disorder; Mood Disorder; Concussion; Cannabis Dependence, uncomplicated; Other Stimulant Abuse, uncomplicated; Other Specified Depressive Episodes; Attention and Concentration Deficit; Personal History of Traumatic Brain Injury (TBI); and, Tinnitus, bilateral. The VA rated the applicant service-connected disability of 10 percent for tinnitus and 10 percent for TBI. 5. APPLICANT-PROVIDED EVIDENCE: Three DD Forms 293; ARBA Letter; DD Form 214; various civilian certificates and awards; Sports newspaper article; Problem Lists and Progress Notes (209 pages); three DVDs (unable to review). 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided various awards and certificates reflecting the applicant's achievements, good citizenship, and success in the community. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. (7) Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14- 12a or 14-12b as appropriate. 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 contends PTSD and TBI affected behavior and ultimately caused the discharge. The applicant's AMHRR contains no documentation of PTSD and/or TBI diagnosis. The applicant provided medical documents, dated 27 February 2020, reflecting provisional diagnosis/diagnosis of Chronic Post-Traumatic Stress Disorder; Mood Disorder; Concussion; Cannabis Dependence, uncomplicated; Other Stimulant Abuse, uncomplicated; Other Specified Depressive Episodes; Attention and Concentration Deficit; Personal History of Traumatic Brain Injury (TBI); and, Tinnitus, bilateral. The VA rated the applicant service-connected disability of 10 percent for tinnitus and 10 percent for TBI. The AMHRR reflects the applicant underwent a mental status evaluation (MSE) on 6 December 2012 and was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was screened for PTSD and mild TBI, with negative results. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. 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 contends being a good citizen and successful in the community. 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 applicant is diagnosed and service connected by the VA with combat-related PTSD and TBI that could mitigate the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is service connected by the VA with combat-related PTSD and TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that applicant's PTSD fully mitigated applicant's self-medication that was the basis for applicant's separation. (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, after applying liberal consideration that applicant's PTSD fully mitigated the self-medicated wrongful drug use that was the basis for separation. b. Response to Contentions: (1) The applicant contends PTSD and TBI affected behavior and ultimately caused the discharge. The Board liberally considered this contention and voted to upgrade the characterization of service due to PTSD, fully mitigating the self-medicated wrongful drug use that was the basis for separation thereby making the discharge inequitable. (2) The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service during the proceedings. (3) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, 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. (4) The applicant contends being a good citizen and successful in the community. The Board considered this contention, however, the Board voted to upgrade the characterization of service due to PTSD fully mitigating the applicant's self-medicated wrongful drug use that was the basis for separation thereby making the discharge inequitable. c. The Board determined the discharge is inequitable based on the applicant's PTSD outweighing the medically fully mitigated self-medicated wrongful drug use that was the basis for separation. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD outweighed the medically fully mitigated self-medicated wrongful drug use that was the basis for separation. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The 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 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210002290 2