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, serving honorably and an upgrade would allow educational benefits through the GI Bill. The applicant is currently furthering education at a university with good grades but is having financial hardship. The applicant states suffering from post-traumatic stress disorder (PTSD) and other medical conditions. The applicant lost several fellow Soldiers in combat and began using drugs as a defense mechanism to cope with behavioral health issues, which led to the discharge. The applicant was informed of another deployment, which made the applicant upset and resigned before deployment. b. Board Type and Decision: In a records review conducted on 26 October 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 (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 26 August 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 July 2008 (2) Basis for Separation: The applicant was informed of the following reasons: On 3 April and 6 May 2008, the applicant tested positive for cocaine. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 29 July 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 7 August 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 November 2005 / 3 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 52D1P, Power-Generation Equipment Repairer / 2 years, 9 months, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (1 January 2007–15 September 2007) f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 10 April 2008, reflects the applicant tested positive for COC 508 (cocaine), during an Inspection Unit (IU) urinalysis testing, conducted on 3 April 2008. FG Article 15, dated 13 May 2008, for wrongfully using cocaine (between 1 and 3 April 2008), and unlawfully striking A. S. on the face with the fist on 2 April 2008. The punishment consisted of a reduction to E-1; forfeiture of $670 pay; and extra duty for 30 days. Electronic Copy of DD Form 2624, dated undated, reflects the applicant tested positive for COC 508 (cocaine), during an Inspection Unit (IU) urinalysis testing, conducted on 6 May 2008. Receipt For Inmate or Detained Person, dated 3 April 2008, reflects the applicant was charged with simple assault/obstruction of justice. FG Article 15, dated 4 June 2008, for wrongfully using cocaine (between 4 and 6 May 2008). The punishment consisted of forfeiture of $670 pay per month for two months; extra duty and restriction for 45 days. Three Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation (MSE), dated 21 July 2008, 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 diagnosed with: Cocaine Abuse; Adjustment Disorder with Mixed Disturbance of Conduct and Emotions (per previous diagnosis) and Occupational Stressors. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; picture. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states furthering the education at a university. 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 prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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 suffering from undiagnosed PTSD, which ultimately caused the discharge. The applicant is 70% service-connected for PTSD. The applicant’s Army Military Human Resource Record (AMHRR) contains documentation which supports a diagnosis of in- service Cocaine Abuse; Adjustment Disorder with Mixed Disturbance of Conduct and Emotions (per previous diagnosis) and Occupational Stressors. The applicant underwent a MSE on 21 July 2008, which 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 MSE was considered by the separation authority. The applicant contends good service, including a combat tour. 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. 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 with disturbance of emotions and conduct, and PTSD. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed with Adjustment Disorder in-service and is 70% service connected for PTSD by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. After applying liberal consideration, the Board's Medical Advisor opined that the applicant's PTSD mitigates the applicant's drug offenses as there is nexus between PTSD and self- medication. However, the BMA opined that the applicant's PTSD and Adjustment disorder do not mitigate the applicant's assault because there is no natural sequela between PTSD/Adjustment Disorder and assault. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the BMA opine, the Board determined that, while the applicant's PTSD mitigates the applicant's drug offenses, the applicant's PTSD and Adjustment Disorder do not outweigh the applicant's medically unmitigated assault that was considered by the SA in accordance with AR 635-200, para 1-16e(2) and 3-d. b. Response to Contention(s): (1) The applicant contends suffering from undiagnosed PTSD, which ultimately caused the discharge. the Board determined that, while the applicant's PTSD mitigates the applicant's drug offenses, the applicant's PTSD and Adjustment Disorder do not outweigh the applicant's medically unmitigated assault that was considered by the SA in accordance with AR 635-200, para 1-16e(2) and 3-d.. (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. The assault and obstruction of justice charges are serious offenses, and the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. Furthermore, the Board found discrepancies between the applicant’s testimony and official records (MOS, rank, length of deployment, quality of service). (3) The applicant contends an upgrade would allow educational benefits through the GI Bill. 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 majority of 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, while the applicant’s PTSD mitigated the drug usage, the totality of the applicant’s service record included assault and obstruction of justice, which are serious offenses, and inconsistent statements of facts related to the applicant’s length and quality of service as listed in paragraph 9b(2) of this document. The minority vote did not strongly consider the arrest/charge for assault/obstruction in their deliberation since it was not listed on the separation document and there was medical mitigation for the positive cocaine use. However, the Board majority applied more weight to the additional charge of assault. The Board majority vote is that 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 since assault and obstruction are serious offenses, 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 / 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 AR20210002426 1