1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was discharged from the service based on charges which were dismissed in the court of law. The applicant states that the applicant accepts responsibility for the actions which caused the discharge. The applicant states the applicant was home on leave for the holidays and made some bad choices which caused the separation from a career the applicant dreamed of all the applicant’s life. After leave, the applicant states the applicant was scheduled to return to Afghanistan. The applicant claims that the applicant may have made the wrong choices due to knowing the applicant was going back to war when the applicant returned. The applicant states the applicant served in direct combat and the applicant needs assistance to cope with the aftermath. The applicant claims to that the applicant has been struggling with PTSD since the discharge and needs Department of Veterans Affairs (VA) benefits. The applicant states the applicant does not have medical benefits. The applicant provided a psychiatric report for review. The applicant claims that the applicant has not been able to secure employment on a regular basis. The applicant is attending Cochise College to achieve a certificate in welding in pursuit of a better life. In a records review conducted on 5 July 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) a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635-200, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 27 March 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 February 2014 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was arrested by Sierra Vista Police Department on 18 December 2013 and, through urinalysis, tested positive for oxycodone, cocaine, marijuana, and opiates, as well as having a blood alcohol content in excess of the legal limit while sitting behind the wheel of a vehicle. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 27 February 2014, the applicant waived legal counsel and declined to submit statements in the applicant’s behalf. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 January 2011 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P, Infantryman / 3 years, 1 month, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (29 February 2012 – 30 September 2012) f. Awards and Decorations: AFCM-CS, AAM, NDSM, GWOTSM, ASR, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant provided Justice Cochise County, AZ, Precinct Five Plea Agreement, dated 22 January 2014, which reflects the applicant agreed to plead guilty to A.R.S. 13-693(A) reckless driving, a class two misdemeanor. The applicant’s sentence consisted of a fine of $475. All charges remaining open were dismissed: DUI dismissed because intoxilyzer was within margin of error. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided Connectionsaz, Psychiatric Discharge Summary, dated 1 December 2018, which reflects the applicant was admitted on 12 January 2018 and discharged on the same date. The issues or chief complaint was BHR seeking script to continue medications. The applicant was prescribed medication, to include Paxil and Risperdal. The applicant could not see a provider until February. The applicant was instructed to follow-up with the VA. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; two DD Forms 293; self-authored statement; Connectionsaz Psychiatric Discharge Summary; American Welding Society Certified Welder Card; Justice Cochise County, AZ, Precinct Five Plea Agreement; ARBA letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is attending Cochise College to achieve a certificate in welding in pursuit of a better life. 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 a person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends suffering from PTSD. The applicant’s AMHRR contains no documentation of PTSD diagnosis. The applicant submitted a medical document, which reflects on 12 January 2018, the applicant was admitted to a psychiatric facility and prescribed Paxil and Risperdal, but the document did not disclose a diagnosis. The applicant contends, being discharged from the service based on charges which were dismissed in the court of law. The basis for separation was the applicant was arrested and tested positive for oxycodone, cocaine, marijuana, and opiates, as well as for DUI. The applicant presented a Plea Agreement, dated 22 January 2014, with the civilian court, which reflects the applicant’s DUI charge was dismissed because the intoxilyzer was within margin of error. The applicant did not present any documentation regarding the positive urinalysis. The AMHRR reflects the applicant was afforded the opportunity, but declined to consult with legal counsel or to submit statements during the separation proceedings. 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 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 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 attending college to achieve a certificate in welding in pursuit of a better life. 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 DoD and VA medical records and applicant’s statement and found that the applicant asserted PTSD may mitigate the applicant’s basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s self-asserted PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board’s Medical Advisor determined that the applicant’s self-asserted PTSD does not mitigate the applicant’s basis of separation (the applicant’s positive drug test for oxycodone, cocaine, marijuana, and opiates, and DUI). (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 medical Advisor, a voting member, and determined that the applicant’s self-asserted PTSD does not outweigh the applicant’s unmitigated basis of separation - positive drug test for oxycodone, cocaine, marijuana, and opiates, and DUI. b. Response to Contentions: (1) The applicant contends suffering from PTSD. The Board liberally considered this contention and determined that there is no evidence in the applicant’s medical records, AMHRR or provided by the applicant that indicate the applicant has a PTSD diagnosis. The applicant’s self-asserted PTSD does not outweigh the applicant’s unmitigated basis of separation - positive drug test for oxycodone, cocaine, marijuana, and opiates, and DUI. Therefore, no change is warranted based on this contention. (2) The applicant contends, being discharged from the service based on charges which were dismissed in the court of law. The Board considered this contention and determined that there is no evidence of arbitrary or capricious action by the command as AR 635-200, paragraph 14-12c(2) authorizes separation for the applicant’s misconduct (the applicant’s positive drug test for oxycodone, cocaine, marijuana, and opiates, and DUI) as the evidentiary standard for the applicant civilian criminal case is different from that required for an Army administrative separation. Therefore, no change is warranted based on this contention. (3) The applicant contends an upgrade of the discharge would allow veterans benefits. 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. (4) 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. (5) The applicant contends attending college to achieve a certificate in welding in pursuit of a better life. The Board considered this contention and determined that the applicant’s post- service accomplishments do not warrant the requested relief. 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 contentions 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, the applicant’s asserted PTSD does not outweigh the unmitigated basis of separation (the applicant’s positive drug test for oxycodone, cocaine, marijuana, and opiates, and DUI). The applicant did not supply sufficient independent corroborating evidence to support the applicant’s contentions, 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 discharge is proper and equitable. (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 AR20210002756 1