1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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, through counsel, requests an upgrade to honorable and RE-code to RE-1. The applicant seeks relief contending, in effect, the applicant served honorably in the Army as a Fire Support Specialist, including a combat tour in Iraq in support of Operation Iraqi Freedom, which was described by one of the applicant's leaders as "the worst tour [they had] been involved in" and included "heavy fighting." The applicant's leaders described the applicant as "the model Soldier" and someone they trusted by their side in war. After deployment, while off duty, the applicant was searched during a traffic stop and found in possession of three prescription pills classified as opiates. While the applicant was not charged, the police department informed the applicant's commander, who processed the applicant for separation. In view of the applicant's quality of service, otherwise immaculate record, and testimony of the applicant's line leaders, it is clear the discharge was too harsh and as a result, inequitable. The applicant had no other disciplinary action on record during the applicant's service, never failed a urinalysis, and immediately entered drug rehabilitation treatment after the traffic stop, including voluntarily accepting a prescription, which blocks the effects of opiates in the body. During separation proceedings, the applicant's leaders, to include the first sergeant and platoon leader, all testified on the applicant's behalf. The commander's decision to initiate discharge proceedings and subsequent recommendation of an other than honorable discharge was arbitrary and capricious in view of the applicant's active participation in the Army Substance Abuse Program (ASAP), and in view of the commander's many misrepresentations to the board with regards to the applicant's quality of service, combat experience, and testimony of fellow Soldiers. The applicant's discharge carries significant consequences. The discharge prevents the applicant from reenlisting in the service, negatively affects the opportunity to obtain a civilian job in the military or other government positions and does not allow the applicant to obtain certain G.I. Bill benefits. The applicant's discharge stigmatizes the applicant's otherwise honorable service. The applicant continues to serve the armed forces, working in the Department of Veterans Affairs (VA) office and earning a degree as a counselor to help other veterans who suffered from drug-related dependencies. In view of the applicant's outstanding record, testimony from the applicant's leaders, and continued post-service work, it is clear the applicant's discharge was too harsh. After the applicant's service, the applicant was diagnosed with Post Traumatic Stress Disorder (PTSD) resulting from combat experience, with a disability rating of 60 percent. Counsel further describes the applicant's substance abuse challenges since the age of 14; family military service background; and the applicant's military service. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a records review conducted on 30 September 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD diagnosis mitigating the drug possession charges. 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 5 April 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 December 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant unlawfully possessed suboxone without a prescription and unlawfully possessed drug paraphernalia on 13 October 2009. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 29 December 2009 (5) Administrative Separation Board: On 29 January 2010, the applicant was notified to appear before an administrative separation board and advised of rights. On 1 February 2010, the administrative separation board convened, and the applicant appeared with counsel. The board recommended the applicant's discharge with characterization of service of general (under honorable conditions). (6) Separation Decision Date / Characterization: 10 March 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 January 2008 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13F10, Fire Support Specialist / 2 years, 2 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (28 July 2008 - 16 February 2009) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ICM-CS, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Phoenix Police Department Report, dated 13 October 2009, reflects the applicant was arrested for possession of a narcotic drug and possession of drug paraphernalia (13 October 2009). The applicant was interviewed and admitted to having the illegal drugs and drug paraphernalia. The applicant admitted to taking the drugs for recreational use and using heroin while on leave and it was the reason why heroin paraphernalia was in the bag. Report of Mental Status Evaluation, dated 1 December 2009, reflects the applicant was cleared for chapter 14-12. The applicant was mentally responsible, could understand the difference between right and wrong; and could participate in the proceedings. Two Developmental Counseling Forms, for use of illegal drugs and pending separation. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical Examination, dated 22 October 2009, the examining medical physician noted in the summary of defects and diagnoses section: Substance abuse; insomnia/anxiety. Report of Medical History, dated 29 October 2009, the examining medical physician noted in the comments section: Anxiety since the applicant was young; insomnia was from recent deployment. The Army Substance Abuse Program's ASAP Substance Abuse Clinic form, undated, reflects the applicant was evaluated on 9 December 2009. The form shows the applicant was diagnosed with opioid dependence. The applicant's progress was excellent, and the applicant was actively involved in the treatment since the applicant was enrolled in ASAP. The applicant provided Department of Veterans Affairs, dated 1 September 2015, which reflects the applicant was rated 30 percent disability for post-traumatic headaches; 70 percent disability for post-traumatic stress disorder with residuals, traumatic brain injury; and 80 percent combined rating. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Legal Brief; self-authored statement; administrative separation board documents; four third party statements; ASAP- Substance Abuse Clinic form; Sworn Statements; VA letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends continuing to serve the armed forces, working in the VA office, and pursuing a degree as a counselor to help other veterans who suffered from drug-related dependencies. 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. 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 PTSD affected behavior which led to the discharge and being diagnosed with PTSD by the VA. The applicant provided medical documents indicating a diagnosis of PTSD with residuals, traumatic brain injury and a rating of 70 percent service- connected disability; and 30 percent disability for post-traumatic headaches. The Army Military Human Resource Record shows the applicant underwent medical examination on 22 October 2009 and the examining medical physician noted in the summary of defects and diagnoses section: Substance abuse; insomnia/anxiety. The applicant underwent a mental status evaluation (MSE) on 1 December 2009, which indicates 1 December 2009, reflects the applicant was cleared for chapter 14-12. The applicant was mentally responsible; could understand the difference between right and wrong; and could participate in the proceedings. 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 the discharge was too harsh and the applicant's immediate commander and separation approving authority were arbitrary and capricious. The applicant was given the opportunity to present the case before an administrative separation board. The administrative separation board convened and recommended discharge with a general (under honorable conditions), which was the discharge directed by the separation authority. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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 an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends continuing to serve the armed forces, working in the Department of Veterans Affairs (VA) office, and pursuing a degree as a counselor to help other veterans who suffered from drug-related dependencies. 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. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good military service. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Adjustment Disorder, Anxiety Disorder NOS, and Opioid Abuse, PTSD with additional diagnoses of Anxiety Disorder NOS and substance related disorders. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder, Anxiety Disorder NOS, and Opioid Abuse. The applicant's Anxiety Disorder NOS was more likely than not a precursor to PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that due to the nexus between trauma and substance use, the applicant's PTSD mitigates the drug possession. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's PTSD outweighed the drug possession basis for separation. b. Response to Contention(s): (1) The applicant contends PTSD affected behavior which led to the discharge and being diagnosed with PTSD by the VA. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's drug possession charges. (2) The applicant contends good service, including a combat tour. 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 mitigating the applicant's drug use basis for separation. (3) The applicant contends the discharge was too harsh and the applicant's immediate commander and separation approving authority were arbitrary and capricious. 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 mitigating the applicant's drug use basis for separation. (4) The applicant desires to rejoin the Military Service. The Board voted to maintain an RE-code of RE-3 due to the applicant's mitigating PTSD is also service-limiting. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (5) 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, 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. (6) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. (7) The applicant contends continuing to serve the armed forces, working in the Department of Veterans Affairs (VA) office, and pursuing a degree as a counselor to help other veterans who suffered from drug-related dependencies. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. 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 mitigating the applicant's drug use basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD diagnosis mitigating the drug possession charges. However, the applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigated the applicant's misconduct of possessing suboxone without a prescription and unlawfully possessing drug paraphernalia. Thus, the prior characterization is no longer appropriate. (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 maintain an RE-code of RE-3 due to the applicant's mitigating PTSD is also service-limiting. 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: 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 AR20210002517 1