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: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the drug use which led to the under other than honorable conditions was symptomatic of the applicant’s PTSD resulting from a combat tour. The applicant has been sober for over a year and wants to put this all behind. The applicant’s VA records confirm the applicant’s PTSD diagnosis. In a records review conducted on 23 June 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 / Under Other Than Honorable Conditions b. Date of Discharge: 4 April 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 December 2012 (2) Basis for Separation: The applicant was informed of the following reasons: Between 3 March 2012 and 3 April 2012, the applicant wrongfully distributed about eight grams of cocaine to another Soldier; On 5 April 2012, the applicant tested positive for cocaine; On 9 October 2012, the applicant again tested positive for cocaine; and Between 3 October 2011 and 22 January 2013, the applicant wrongfully distributed anabolic steroid, a schedule III controlled substance, to another Soldier. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 18 December 2012 (5) Administrative Separation Board: On 18 December 2012, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 24 January 2013, the applicant’s conditional waiver was denied. On 24 January 2013, the applicant was notified to appear before an administrative separation board and advised of rights. The administrative separation board proceedings were void from the service record. (6) Separation Decision Date / Characterization: 1 March 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 January 2007 / 5 years / On 9 March 2010, the applicant extended the enlistment for 20 months, giving the applicant a new ETS of 25 September 2013. b. Age at Enlistment / Education / GT Score: 22 / GED / 117 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B3P, Infantryman / 7 years, 10 months, 16 days d. Prior Service / Characterizations: RA, 19 May 2005 – 25 January 2007 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (6 August 2007 – 23 October 2008) f. Awards and Decorations: ARCOM, AAM-2, AGCM-2, NDSM, GWOTSM, ICM-CS, NCOPDR-2, ASR, OSR-2 g. Performance Ratings: 1 May 2009 – 10 August 2009 / Among the Best 11 August 2009 – 20 May 2010 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 22 June 2012, for wrongfully using cocaine (between 3 April 2012 and 5 April 2012). The punishment consisted of a reduction to E-5; forfeiture of $1,331 pay per month for one month; and, extra duty for 45 days, suspended. FG Article 15, dated 3 December 2012, for wrongfully using cocaine (between 6 October 2012 and 9 October 2012). The punishment consisted of a reduction to E-4; forfeiture of $500; extra duty for 45 days; and restriction to the limits of off post residence and place of duty for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant’s DD 149 included a statement that referenced a VA PTSD diagnosis. 5. APPLICANT-PROVIDED EVIDENCE: DD Form149. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been sober for over a year. 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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. (7) 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 contends the drug use was due to PTSD resulting from a combat tour. The applicant’s AMHRR contains no documentation of PTSD 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 does not contain a mental status evaluation (MSE). The ARBA sent a letter to the applicant at the address in the application on 19 April 2018 requesting documentation to support a PTSD diagnosis but received no response from the applicant. The applicant contends being sober for over a year. 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: PTSD and Bipolar Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s PTSD and Bipolar Disorder existed during the applicant’s military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor opined that the applicant’s PTSD mitigates the applicant’s two offenses of testing positive for cocaine as there is a nexus between PTSD and self-medicating with substances. However, the applicant’s PTSD and Bipolar Disorder do not mitigate the applicant’s offenses of wrongful distribution of cocaine and anabolic steroids because these offenses are serious offenses that involves intentional planning characteristic of a deliberate choice to break the law. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Opine, the Board determined that, while the applicant’s PTSD mitigates the applicant’s two offenses of testing positive for cocaine, the applicant’s PTSD and Bipolar Disorder do not outweigh the applicant’s medically unmitigated offense of wrongfully distributing eight (8) grams of cocaine. b. Response to Contention(s): (1) The applicant contends the drug use was due to PTSD resulting from a combat tour. The Board considered this contention and determined the applicant’s PTSD outweighs the applicant’s medically mitigated offenses of testing positive for cocaine drug use. However, the applicant’s PTSD/Bipolar Disorder do not outweigh the applicant’s medically unmitigated offense of wrongfully distributing eight (8) grams of cocaine. The Board also considered the totality of the applicant’s record, including the applicant’s behavioral health condition and determined that a discharge upgrade is not warranted due to the serious nature of the applicant’s misconduct. (2) The applicant contends being sober for over a year. The Board considered this contention and commended the applicant for the applicant’s sobriety. However, the Board determined that totality of the applicant’s record does not warrant a discharge upgrade due to the serious nature of the applicant’s offense – wrongful distribution of eight (8) grams of cocaine. 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 after applying liberal consideration because, while the applicant’s PTSD mitigates the applicant’s two offenses of testing positive for cocaine, the applicant’s PTSD and Bipolar Disorder do not outweigh the applicant’s medically unmitigated offense of wrongfully distributing eight (8) grams of cocaine. 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. The Board also considered the totality of the applicant’s record, including the applicant’s behavioral health conditions and post-service sobriety and found that a discharge upgrade was not warranted. Therefore, the applicant’s Under Other Than Honorable Conditions was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable Discharge. (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 AR20210002790 1