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, has two honorable and one under other than honorable discharge. The applicant returned from deployment and never received any of the requested physiological help. The applicant reported to the chain of command a SSG was having an affair with the applicant's spouse. The First Sergeant failed to report it and failed to do something about the adultery. The applicant is now incarcerated for 40 years and contends the chain of command discharged the applicant as fast as they could while the applicant sat in jail keeping blood off their hands. The applicant never properly out processed, but did speak to a mental health doctor and told them everything the applicant was going through, however they signed the applicant off as being fit for duty and suicidal. They failed the applicant on the mental status evaluation and now has been diagnosed in prison. The applicant gave the Army 110 percent and was called super Soldier and everyone would have positive things to say about the applicant. The applicant contends never being charged with AWOL and was discharged for drug use. The applicant contends never being given the chance to sign the DD Form 214 and none of this would have happen if the chain of command would have done something about the situation. The applicant contends not once getting in to trouble, prior to deployment. In a records review conducted on 31 March 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: 29 May 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 November 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for THC, a controlled substance, on 9 September 2013 and declared absent without leave (AWOL) on 10 September 2013 until the applicant was apprehended by civilian authorities. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 7 November 2013, the applicant waived legal counsel. (5) Administrative Separation Board: On 7 November 2013, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 27 May 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 August 2012 / 3 years b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D10 L5, Chemical Operations Specialist / 5 years, 8 months, 1 day d. Prior Service / Characterizations: 11 January 2008 - 26 August 2012 / HD e. Overseas Service / Combat Service: Korea, SWA / Kuwait (4 November 2011 - 29 October 2012) f. Awards and Decorations: ARCOM, AGCM, AFGCM, NDSM, GWOTEM, GWOTSM, NCOPDR, ASR, OSR, KDSM, AAM-3 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 19 September 2013, reflects the applicant tested positive for THC 208 Nano grams (Marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 6 September 2013. Charge Sheet, dated 12 September 2013, reflects the applicant was charged with: violation of the UCMJ, Article 85, for desertion on or about 11 September 2013 to 12 September 2013. Military Police Report, dated 13 September 2013, reflects the applicant was apprehended for: Desertion (Article 86) Apprehended by civilian authorities off post; Desertion on post; AWOL on post. Warrant of Arrest Felony was issued on 19 September 2013 for the applicant. Military Police Report, dated 20 September 2013, reflects the applicant was apprehended for: Civil charge: Larceny of private motor vehicle ($200 and over); Larceny of government property (Less than $100); and, Damage to government property (Off post). CID Report, dated 1 November 2013, reflects the investigation established probable cause to believe the applicant committed the offense of wrongful use of Marijuana. The applicant submitted a urine specimen during a unit urinalysis inspection. On 6 September 2013, which was tested and found to contain THC at a level of 208 NG per milliliter. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 9 September 2013; From "AWOL" to "Dropped From Rolls (DFR)," effective 12 September 2013; and, From "Dropped From Rolls (DFR)," to "Confined," effective 26 May 2015. Four Developmental Counseling Forms, for various acts of misconduct. Lost Time / Mode of Return: 1 years, 8 months, 17 days (AWOL 9 September 2013 - 26 May 2015) / Apprehended by Civil Authorities i. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 6 November 2013, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment Disorder. The applicant provided a VA document, dated 21 October 2019, reflecting a diagnosis of unspecified trauma and stressor related disorder and unspecified depressive disorder with panic attacks. 5. APPLICANT-PROVIDED EVIDENCE: DA Form 3822; DD Form 293; Commander recommendation; Page 3 of 3 of VA letter; list of medication and hand written instructions to assist the case. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with application. 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 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 never properly out-processing and was signed off as being fit for duty and suicidal by mental health. The AMHRR shows the applicant underwent a Mental Status Evaluation, on 6 November 2013, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Adjustment Disorder. The MSE was considered by the separation authority. The applicant provided a VA document, dated 21 October 2019, which reflects a diagnosis with unspecified trauma and stressor related disorder and unspecified depressive disorder with panic attacks. The applicant contends never being charged with AWOL and was discharged for drug use. The AMHRR shows the applicant tested positive for THC 208 Nano grams (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 6 September 2013. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends, never receiving any physiological assistance. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the First Sergeant failed to report the affair between the applicant's spouse and the SSG. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The third party statement provided with the application speaks on the impact the applicant's PTSD had on the spouse while serving in the Army. 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 applicant was diagnosed in-service with an Adjustment Disorder and Depression. Applicant was diagnosed post-service with PTSD and Unspecified Trauma and Stressor Related Disorder. These conditions may mitigate applicant's basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant was diagnosed in service with an Adjustment Disorder and Depression. While applicant was diagnosed post-service with PTSD and Unspecified Trauma and Stressor Related Disorder, the weight of the evidence does not support that either of these conditions existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor determined that the medical condition partially mitigates the basis of separation. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between Depression and using substances to self-medicate, applicant's Depression mitigates applicant's positive UA for marijuana. However, applicant's AWOL is not mitigated given that there is not a natural sequela between Depression or an Adjustment Disorder and going AWOL. (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 any of the applicant's medical conditions outweighed the medically unmitigated basis for applicant's separation b. Response to Contention(s): (1) The applicant contends, never properly out-processing and was signed off as being fit for duty and suicidal by mental health. The Board considered this contention non-persuasive during its deliberations. The seriousness of the applicant's actions forfeited certain rights and forced the unit to out-process with regards to regulatory requirements. The weight of the evidence does not support any conclusion that there was any capricious or arbitrary actions by the command. (2) The applicant contends never being charged with AWOL and was discharged for drug use. The Board found this contention non-persuasive after also reviewing evidence of a desertion charge, with the applicant only returning after apprehension by civilian authorities for unrelated larceny charges. (3) The applicant contends never receiving any physiological assistance. The Board considered this contention and also reviewed evidence of a chapter mental status evaluation completed on the applicant. The weight of the evidence does not support a conclusion that there was any capricious or arbitrary actions by the command. (4) The applicant contends the First Sergeant failed to report the affair between the wife and the SSG. The Board determined that the Army has many legitimate avenues available to service members requesting assistance. The weight of the evidence does not support a conclusion that such assistance was pursued. The Board voted after considering the contention and finding the weight of the evidence did not support a conclusion that the Command acted in an arbitrary or capricious manner. (5) The applicant contends good service, including a combat tour. The Board 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 abusing drugs and deserting the unit, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation (6) The third party statement provided with the application speaks on the impact the applicant's PTSD had on the spouse while serving in the Army. The Board considered the applicant's PTSD diagnosis and the familial impacts such an experience can have, however determined the discharge was proper and equitable due to the seriousness of the misconduct. The Board determined that there is no evidence of in-service diagnosis, post-service service- connected by the VA, or evidence of the existence of the applicant's PTSD affected the applicant in-service. 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, the applicant's Depression, Adjustment Disorder, or post- service, non-service connected PTSD and other BH conditions do not outweigh the unmitigated offense of AWOL. 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. (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 AR20210003096 1