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, after returning from Afghanistan the applicant was a different person and is now a disabled veteran suffering from post-traumatic stress disorder (PTSD) and depression. The applicant served honorably with many accomplishments and medals. The applicant has grown and would like to go back to school to excel further in the applicant’s career. The applicant was court-martialed and accused of a sexual assault crime after returning from Afghanistan but acquitted of all charges. The applicant was flagged and barred, which put a strain on the applicant’s household and personal relationships. The results of the trial were favorable for the applicant, but the damage to the applicant’s military career and mental health was already done. The applicant believed self-medication at the time was a remedy for the pain. The applicant believed the chain of command did not provide any support during the discharge process. The applicant still suffers from depression but is now receiving disability for PTSD. The applicant keeps active and speaks to others who can understand or at least sympathize with these similar feelings. The applicant requests an upgrade because although the applicant has a job, many of the jobs on military bases require an honorable discharge status, which currently hinders the applicant’s growth. b. Board Type and Decision: In a records review conducted on 24 August 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 21 August 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 March 2010 / 3 years, 30 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 25Q10, Multichannel Transmission Systems Operator-Maintainer / 3 years, 4 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (11 March 2011 – 8 December 2011) f. Awards and Decorations: ARCOM, MUC, AGCM, NDSM, ACM-2CS, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 30 April 2012, reflects the applicant was apprehended for: Traffic Accident Failure to Clear the Rear (On Post). Military Police Report, dated 25 May 2012, reflects the applicant was apprehended for: Aggravated Assault – Using glass bottles, ETC (Off Post); Assault – Consummated by a Battery (Off Post); and False Official Statement (On Post). CID Report of Investigation - Initial Final, dated 22 June 2012, reflects an investigation established probable cause to believe the applicant committed the offense of Aggravated Sexual Assault when the applicant engaged in sexual intercourse with SPC [redacted] against will. Military Police Report, dated 22 October 2012, reflects the applicant was apprehended for: Fleeing the Scene of a Traffic Accident (Off Post); Traffic Accident: Failure to Maintain Control (Off Post); Owning an Unregistered Vehicle (Off Post); and Operating an Unregistered Vehicle (Off Post). CID Report of Investigation - Initial Final, dated 25 June 2013, reflects an investigation established probable cause to believe the applicant committed the offense of Wrongful Use of Oxymorphone which was later detected by a Unit Urinalysis Inspection (UUI). Investigation further established probable cause to believe the applicant committed the offense of Failure to Obey Order or Regulation (AR 600-85) when the applicant was found in possession of Spice. Military Police Report, dated 2 August 2013, reflects the applicant was apprehended for: Assault – Consummated by a Battery (On Post). Orders 218-0003, dated 6 August 2013, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 21 August 2013 from the Regular Army. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 and a self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has obtained employment and attends mental health counseling. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant’s Army Military Human Resource Record (AMHRR) is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c(2), by reason of Misconduct (Drug Abuse), with a characterization of service of General (Under Honorable Conditions). The applicant contends good service, including a combat tour. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends suffering from PTSD and depression before the discharge, which affected the applicant’s behavioral health. The applicant’s AMHRR contains no documentation of behavioral health diagnosis. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the discharge resulted from any medical condition. The AMHRR is void of a Mental Status Evaluation. The ARBA sent a letter to the applicant at the address in the application on 27 August 2018 requesting documentation to support a PTSD diagnosis but received no response from the applicant. The applicant contends family and personal issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends the chain of command did not provide any support during the discharge process. The applicant provided no evidence, other than the statement, to support the contention of no command support. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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 obtaining employment and attending mental health counseling. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Major Depressive Disorder, PTSD, Cannabis use, and Alcohol Dependence. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor that indicate post-service BH diagnoses of Major Depressive Disorder, PTSD, Cannabis use, and Alcohol Dependence existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a partially mitigating BH diagnosis of PTSD. Drug usage to manage symptoms is part of the sequela of symptoms associated with PTSD. The other offenses listed in applicant’s service record are not medically mitigated by applicant’s BH diagnosis. Assault – Consummated by a Battery, Fleeing the Scene of a Traffic Accident; Traffic Accident: Failure to Maintain Control; Owning an Unregistered Vehicle; Operating an Unregistered Vehicle, Aggravated Sexual Assault, Aggravated Assault and Battery, and a traffic accident do not have any nexus with applicant’s BH diagnosis. The BMA opined that the applicant's PTSD mitigates the drug use as there is a nexus between PTSD and self-medication. However, the BMA found that the applicant's PTSD and OBH condition do not mitigate applicant's Other Misconduct (include here) considered by the Separation Authority at the time of discharge.. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s Major Depressive Disorder, PTSD, Cannabis use, and Alcohol Dependence outweighed the basis for applicant’s separation – Assault – Consummated by a Battery, Fleeing the Scene of a Traffic Accident; Traffic Accident: Failure to Maintain Control; Owning an Unregistered Vehicle; Operating an Unregistered Vehicle, Aggravated Sexual Assault, Aggravated Assault and Battery, and a traffic accident. b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the applicant committing the misconduct of Assault – Consummated by a Battery, Fleeing the Scene of a Traffic Accident; Traffic Accident: Failure to Maintain Control; Owning an Unregistered Vehicle; Operating an Unregistered Vehicle, Aggravated Sexual Assault, Aggravated Assault and Battery, and a traffic accident, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends suffering from PTSD and depression before the discharge, which affected the applicant’s behavioral health. The Board considered this contention and determined the applicant’s PTSD and depression do not fully mitigate or outweigh the applicant’s discharge. The applicant was properly and equitably discharged. (3) The applicant contends family and personal issues affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family and personal issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant committing Battery, Fleeing the Scene of a Traffic Accident; Traffic Accident: Failure to Maintain Control; Owning an Unregistered Vehicle; Operating an Unregistered Vehicle, Aggravated Sexual Assault, Aggravated Assault and Battery, and a traffic accident is not an acceptable response to dealing with family and personal issues, thus the applicant was properly and equitably discharged. (4) The applicant contends the chain of command did not provide any support during the discharge process. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that the applicant was properly and equitably discharged. (5) 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. (6) The applicant contends obtaining employment and attending mental health counseling. 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. In this case, the Board considered the applicant’s post-service conduct and determined that it does not outweigh the nature and severity of the applicant’s medically unmitigated misconduct. Thus, the applicant was properly and equitably discharged. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s Major Depressive Disorder, PTSD, Cannabis use, and Alcohol Dependence did not excuse or mitigate the offenses of Battery, Fleeing the Scene of a Traffic Accident; Traffic Accident: Failure to Maintain Control; Owning an Unregistered Vehicle; Operating an Unregistered Vehicle, Aggravated Sexual Assault, Aggravated Assault and Battery, and a traffic accident. The Board also considered the applicant’s contentions of inequity and impropriety, and determined there was insufficient evidence of any arbitrary or capricious action taken by the Command, or mitigating factors such that would warrant an upgrade of the discharge. 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. Therefore, the applicant’s General (Under Honorable Conditions) was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as 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 AR20210002566 1