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, while serving in Iraq, the applicant went through several mental health challenges, causing a rapid decline. While at Camp Liberty, the applicant was onsite at a clinic where military personnel were shot. The incident caused the mental state to decline and it subsequently, led to the drug addiction. The same week while traveling in Iraq and upon passing a small marketplace, a person came out of the crowd and threw a grenade at the tank. That activity was continuous on a day-to-day basis which also caused the mental state to decline. The applicant's PTSD led to drug abuse and mental health issues. The applicant currently has a permanent therapist and a psychologist, who diagnosed the applicant with PTSD after returning home. The applicant pays for the treatments and medications. The applicant is no longer the same person who deployed. The applicant would have never done any of the unlawful acts. The drug abuse went out of control with multiple mood swings, loss of memory, and lack of sleep after returning home. The applicant wakes up in the middle of the night and turns on all the lights, looking for the enemy. The applicant resides with the parents now and is on medications for the mental state and for sleeping at night, which has since doubled in dosage. The applicant has not been able to hold a full-time employment. All the enlistment documents can confirm the applicant had no mental illness prior to the deployment to Iraq. The applicant's PTSD, drug abuse, and mental health issues started in Iraq and continued after returning home. The applicant has been approved for disability by the State of Ohio and assigned a therapist and psychologist for the PTSD. The applicant's parent has been paying out of pocket for the additional help with behavioral health facilities and a family physician who prescribes medication for mental health involving PTSD. The applicant asked the parent to help with completing current application. The parent asks for help in returning the applicant's rank as the applicant is very proud of serving and representing the USA. b. Board Type and Decision: In a records review conducted on 17 November 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge. 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, and the reentry code to RE-3. 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: 31 August 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 June 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 14 June 2010, the applicant was convicted at a Summary Court-Martial for violation of Article 86, UCMJ, for being AWOL, three violations of Article 112a, UCMJ, for wrongful use of a controlled substance, and two violations of Article 121, UCMJ, for wrongful appropriation. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 July 2010 (5) Administrative Separation Board: On 12 July 2010, in a pretrial agreement, the applicant offered to plead guilty to all charges and its specifications provided they were referred to trial by a Summary Court-Martial, and further agreed to waive the right to an administrative separation board. (6) Separation Decision Date / Characterization: On an illegible date, the General Court-Martial Convening Authority approved the applicant's conditional waiver and discharge. / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 December 2009 / NIF b. Age at Enlistment / Education / GT Score: 26 / GED / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years d. Prior Service / Characterizations: RA, 17 July 2008 - 17 December 2009 / HD e. Overseas Service / Combat Service: SWA / Iraq (5 February 2009 - 10 May 2010) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DD Form 2624, dated10 March 2010, reflects the applicant tested positive for COC 150 (Cocaine), during an Inspection Unit (IU) urinalysis testing, conducted on 8 March 2010. Electronic Copy of DD Form 2624, dated 8 April 2010, reflects the applicant tested positive for COC 39055 (Cocaine) and THC 208 (Marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 31 March 2010. Developmental Counseling Forms for acts of misconduct. Nine Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 5 May 2010; From "AWOL" to "Present for Duty (PDY)," effective 7 May 2010; From "PDY" to "AWOL," effective 19 May 2010; From "AWOL" to "PDY," effective 24 May 2010; From "PDY" to "AWOL," effective 28 May 2010; From "AWOL" to "PDY," effective 4 June 2010; From "PDY" to "AWOL," effective 23 July 2010; From "AWOL" to "PDY," effective 26 July 2010; and From "PDY" to "AWOL," effective 3 August 2010. Charge Sheet with charges preferred on 7 June 2010, and a referral to trial by Summary Court- Martial on 9 June 2010, reflects the applicant was charged with: Charge I: Violation of the UCMJ, Article 86, for being absent without authority on 28 May 2010, and remaining absent until 4 June 2010. Charge II: Three violations of the UCMJ, Article 112a: a specification of wrongfully using Marijuana (between 1 and 31 March 2010); and two specifications of wrongfully using Cocaine (between 1 and 8 March 2010 and 24 and 31 March 2010). Charge III: Two violations of the UCMJ, Article 121, for committing larceny of a black wallet with its contents of a value of under $500, property of PFC M. L. M., on 28 March 2010, and larceny of funds of a value of under $500, property of PFC M. L. M., (between 28 and 30 March 2010). Pretrial Agreement with Appendix I (Quantum), dated 7 June 2010, reflects the applicant offering to plead guilty to all charges and its specifications with stipulations, while agreeing to waive all rights to an administrative separation board processing, provided the Convening Authority took the action of referring case for trial in a Summary Court-Martial and approving punishments no greater than which authorized. The Pretrial Agreement and Appendix I were approved on 7 June 2010. Report of Result of Trial reports the applicant was tried in a Summary Court-Martial on 14 June 2010. The summary of charges and its specifications, pleas, and findings were: Violation of Article 86, AWOL, guilty consistent with the plea; Violations of Article 112a, wrongful use of Marijuana and Cocaine x 2, guilty consistent with the pleas; and Violations of Article 121, Larceny, guilty of the charge with exceptions: Specification 1, not guilty consistent with the plea of not guilty, but guilty of the lesser included offense of wrongful appropriation; and, Specification 2, not guilty, inconsistent with the plea of guilty, but guilty of the lesser included offense of wrongful appropriation. The sentence of a reduction to E-1, confinement for 30 days, and only so much of forfeiture of $964 pay, and a credit of eight days of confinement against the sentence to confinement was approved. i. Lost Time / Mode of Return: 46 days: AWOL, 5 May 2010 - 6 May 2010 / Returned to Military Control AWOL, 19 May 2010 - 23 May 2010 / Returned to Military Control AWOL, 28 May 2010 - 3 June 2010 / Returned to Military Control AWOL, 23 July 2010 - 25 July 2010 / Returned to Military Control AWOL, 3 August 2010 - 31 August 2010 / Absent at the time of discharge. j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation (MSE), dated 13 May 2010, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible and was able to recognize right from wrong. The MSE reflected an "Axis I" diagnosis of "Cocaine abuse; Adjustment disorder with mixed disturbance of emotion and conduct." Mental Status Evaluation (MSE), dated 28 July 2010, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible and was able to recognize right from wrong. The MSE reflected an "Axis I" diagnosis of "Cocaine Abuse by History" and "Alcohol Abuse by History." The applicant provided a copy of a Premier Health medical record with a noted date of 5 August 2016, which reflects the following health issues: "Acute posttraumatic stress disorder following military combat," "Anxiety," "Tobacco dependence," and "Difficulty falling or staying asleep;" a list of "Therapist and Psychologist assigned" the applicant; and a list of hospital visits. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with listed enclosures; Online Application. 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the undiagnosed PTSD deriving from the Iraq deployment led to drug abuse and behavioral health issues, and subsequently, a discharge from the Army. The PTSD has since been diagnosed and the applicant is receiving treatment and care paid for by the parents. The applicant provided several medical documents indicating a diagnosis of the PTSD, and prescribed medications. The AMHRR shows the applicant underwent two separate mental status evaluations (MSE) on 13 May and 28 July 2010, both indicated the applicant was mentally responsible and recognized right from wrong. The two evaluations provided diagnoses of "Cocaine abuse; Adjustment disorder with mixed disturbance of emotion and conduct," and "Cocaine Abuse by History" and "Alcohol Abuse by History," respectively. The evaluations were considered by the separation authority. The applicant contends having to pay out-of-pocket for the medical expenses. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits 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 the rank should be restored because of having proudly served the Army and represented the USA. The Board considered the service accomplishments and the quality of service. However, the Army Discharge Review Board is not empowered to restore former service member's grade, rate, or rank. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in the discharge, the applicant may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. 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: PTSD, Depression. Additionally, the applicant asserts PTSD, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant self-asserts that applicant's PTSD existed during the time of 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 applicant self-asserts combat-related PTSD and the VA medical record reveals post-service diagnoses of PTSD and depression. Given the nexus between PTSD, avoidance, and self-medicating with substances, applicant's PTSD may have contributed to the AWOLs and wrongful use of controlled substances. However, there is no natural sequelae between PTSD and wrongful appropriation since PTSD does not interfere with one's ability to distinguish between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's PTSD and depression outweighed the basis for applicant's separation - AWOLs, wrongful use of a controlled substance, and wrongful appropriation. b. Response to Contention(s): (1) The applicant contends the undiagnosed PTSD deriving from the Iraq deployment led to drug abuse and behavioral health issues, and subsequently, a discharge from the Army. 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 PTSD along with applicant's length and quality of service including combat outweighing the applicant's AWOL's, wrongful use of a controlled substance, and wrongful appropriation basis for separation. (2) The applicant contends having to pay out-of-pocket for the medical expenses. The Board 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. (3) The applicant contends the rank should be restored because of having proudly served the Army and represented the USA. The Board determined that the applicant's requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge. 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, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge mitigated the applicant's misconduct of AWOLs, wrongful use of a controlled substance, and wrongful appropriation. Thus, the prior characterization is no longer appropriate. (2) (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 Board voted to change the RE code to RE-3 due to applicant's service limiting conditions - PTSD and Depression. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 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 AR20210002364 1