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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge is inequitable because it was based on one isolated incident in 70 months of service with no other adverse actions. The applicant did not knowingly ingest THC, and did not violate article 112a under the "knowingly component." The applicant was also suffering from undiagnosed/untreated TBI and could not effectively advocate during the discharge proceedings. The applicant also states pre-service tattoos which were listed on the enlistment documents were used against the applicant in the discharge proceedings. In a records review conducted on 5 May 2022, and by a 5 - 0 vote, the Board determined that the characterization of service was inequitable based on the applicant's PTSD and TBI. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. 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: 14 June 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 May 2016 (2) Basis for Separation: The applicant was informed of the following reasons: Between on or about 29 November 2015 and on or about 20 December 2015, the applicant wrongfully used tetrahydrocannabinol (THC). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 3 May 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 24 May 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 March 2014 / 4 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M1P, Motor Transport Operator / 4 years, 11 months, 25 days d. Prior Service / Characterizations: RA, 20 June 2011 - 5 March 2014 / HD e. Overseas Service / Combat Service: Alaska, Italy / None f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, NCOPDR, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant provided a copy of a Memorandum with positive drug test results, dated 4 February 2016, which reflects the applicant tested positive during an Inspection Random (IR) urinalysis for THC which was conducted on 20 December 2015. The applicant provided a copy of agent's investigation report, dated 16 February 2016, which reflects probable cause existed to believe the applicant committed the offense of Wrongful Use and Possession of a Controlled Substance. The applicant also stated the applicant never used any substance containing THC, while having a THC level of 253 nGL, and additionally had a tattoo of "Kush" on the applicant's forearm; probable cause existed to believe the applicant committed the offense of False Official Statement. The applicant provided a copy of FG Article 15, dated 16 March 2016, for wrongfully using tetrahydrocannabinol (THC) between on or about 29 November 2015 and on or about 29 December 2015. The punishment consisted of a reduction to E-3; forfeiture of half month pay for two months (suspended); and, extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Medical Records, dated 24 May 2016, reflects Depression Screen Positive. Progress Notes, printed on 30 December 2016, reflect the applicant was diagnosed with Major Depressive Disorder and R/O Posttraumatic Stress Disorder. VA Letter, dated 27 March 2018, reflects the applicant was granted 100 percent service connection for traumatic brain injury with peripheral vestibular disorder and post-traumatic stress disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; self-authored statement; nine certificates; DD Form 1059; DA Form 638; Nato Travel Order; Joint Services Transcript; separation packet; medical records; VA letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant attended the Academy of Art University in San Francisco using the applicant's G.I. Bill. The applicant was scheduled to graduate December 2018 with an Associate's Degree in Industrial Design and wants to open a barber shop one day. 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. (7) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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: 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 the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends the discharge should be upgraded because the applicant does not know how THC entered the system. The applicant tested positive for THC during an Inspection Random (IR) urinalysis which was conducted on 20 December 2015. The applicant stated during a CID investigation, never using any substance containing THC. The Investigating Agent noted the applicant had a tattoo of "Kush" on the applicant's forearm and determined probable cause existed to believe the applicant committed the offense of False Official Statement. The applicant contends undiagnosed TBI and PTSD prevented the applicant from advocating during the discharge proceedings. The command used pre-existing tattoos against the applicant. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant provided a copy of a VA rating decision indicating the applicant was granted 100 percent service connection for traumatic brain injury with peripheral vestibular disorder and post-traumatic stress disorder. The AMHRR does not contain a mental status evaluation (MSE) and the applicant's tattoos were not a specific reason for the discharge. The applicant attended the Academy of Art University in San Francisco using the applicant's G.I. Bill. The applicant was scheduled to graduate December 2018 with an Associate's Degree in Industrial Design and wants to open a barber shop one day. 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. Applicant is diagnosed and service connected by the VA with TBI and PTSD that could mitigate the applicant's drug use that was the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed and service connected by the VA with TBI and PTSD. Service connection establishes that the conditions existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor liberally considered the applicant's BH conditions, and determined that applicant's TBI mitigated applicant's drug use. (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 and TBI outweighed the medically mitigated drug use that was the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. 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 and TBI outweighing the applicant's medically mitigated drug use bases for separation. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD and TBI outweighing the medically mitigated drug use that was the bases for separation. (3) The applicant contends good service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. (4) The applicant contends the discharge should be upgraded because the applicant does not know how THC entered the system. 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 and TBI outweighing the applicant's medically mitigated drug use that was the bases for separation. (5) The applicant contends undiagnosed TBI and PTSD prevented the applicant from advocating during the discharge proceedings. The Board reviewed the applicant's DOD and VA health records and determined the applicant was diagnosed and service connected by the VA with TBI and PTSD. Therefore, the Board determined that this contention was valid and voted to upgrade the characterization of service. c. The Board determined the Board determined that the characterization of service was inequitable based on applicant's PTSD and TBI outweighing the medically mitigated drug use that was the bases for separation. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD and TBI outweighed the applicant's medically mitigated drug use that was the bases for separation. 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 change the RE code to RE-3. 10. BOARD ACTION DIRECTED: e. Issue a New DD-214: Yes f. Change Characterization to: Honorable g. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN h. Change RE Code to: RE-3 i. 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 AR20210003036 1