1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant acknowledges his own fault in his violation of acceptable conduct, but his single instance of poor judgment does not rise to the level of misconduct needed to support a discharge of this nature. The applicant humbly asks this Board to review the circumstances of his discharge with liberal consideration of the facts of the case and his undiagnosed mental health condition, and grant his request for an upgrade to an honorable status. The applicant not only served his country with distinction, obtaining awards during his time of service, but he received glowing reviews from his superior officers, who recognized his talents and potential as a leader in the United States Army. Since discharge, the applicant received treatment and medication for narcolepsy with cataplexy. As a result, the applicant graduated from Front Range Community College, worked for the State of Colorado in a group home for developmentally disabled men, and was recently accepted into the Colorado School of Mines where the applicant received a $45,000 merit scholarship. The applicant states he was never offered an opportunity for rehabilitation for his one-time drug use. In a records review conducted on 17 February 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. (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 October 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 October 2013 (2) Basis for Separation: The applicant was informed of the following reasons: On 3 September 2013, he tested positive for cocaine. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 3 October 2013 the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 September 2010 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 1 month, 2 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (30 July 2012 - 11 December 2012) f. Awards and Decorations: ACM-2CS, ARCOM, NDSM, GWOTSM, ASR, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 18 September 2013, for wrongfully using cocaine on or about 3 September 2013. The punishment consisted of a reduction to E-1; forfeiture of $758 pay per month for two months (suspended); and, extra duty and restriction for 45 days and oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 26 September 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: Cocaine use, rule out dependence. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and Legal brief with all listed exhibits. 6. POST SERVICE ACCOMPLISHMENTS: In May of 2016, the applicant graduated from Front Range Community College with an Associates of Science degree and a 3.2 GPA. He worked for the State of Colorado in a group home for developmentally disabled men, and was recently accepted into the Colorado School of Mines where the applicant received a $45,000 merit scholarship. 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 he had an undiagnosed mental condition. The applicant provided a copy of his VA disability rating decision dated 3 June 2016, which reflects the applicant was rated at 10 percent for Narcolepsy. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 26 September 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: Cocaine use, rule out dependence. The MSE was considered by the separation authority. 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, including a combat tour. The applicant states he received glowing reviews from his superior officers. His DA Form 1059 states, the applicant achieved course standards. He displayed outstanding written communication skills by achieving a superior rating on all written evaluations. He communicated assertively without being overly aggressive. He demonstrated superior leadership skills by creating an environment that expects good performance and motivated peers to do the same. The applicant participated in small group discussions and exercises in a satisfactory manner. He earned an academic average of 91.74 percent. The Board considered the service accomplishments and the quality of service. The applicant contends he has obtained employment and graduated from college. 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. The applicant contends he was never given the chance for rehabilitation. Army Regulation 635- 200, paragraph 1-17d, entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. Army Regulation 600-85, paragraph 3-8 entitled self-referrals, states Soldiers may self- refer to the Army Substance Abuse Program (ASAP) counseling center for assistance. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct after leaving the Army. In reference to counsel's request for pre-decisional documents, it is not the practice of the Army Review Boards Agency to provide pre-decisional documents prior to adjudication. Once the case has been adjudicated, the applicant and counsel will be provided a copy of the final decision. 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 and found the applicant was diagnosed with service-connected Narcolepsy that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant was diagnosed with service-connected Narcolepsy. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration of all the evidence and found that the weight of the evidence did not support any association between applicant's cocaine use and applicant's Narcolepsy, and therefore there was no mitigation for the cocaine use that was the basis for applicant's separation. (4) Does the condition or experience outweigh the discharge? No. The Board, after applying liberal consideration, concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's cocaine use is not outweighed by applicant's Narcolepsy. b. Response to Contention(s): (1) The applicant contends an undiagnosed mental condition. The Board reviewed the applicant's DOD and VA health records and found the applicant was diagnosed with service- connected Narcolepsy, but concluded that this medical condition does not outweigh the cocaine use that was the basis for applicant's 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 the applicant's one-time drug use as compared to the applicant's quality of service, including combat service, combined with applicant's post-service accomplishments. (3) The applicant contends good service, including a combat tour. The Board considered applicant's quality of service during its deliberation and concluded relief was warranted for the reasons stated above. (4) The applicant contends obtaining employment and graduated from college. The Board considered this contention during its deliberation and concluded relief was warranted for the reasons stated above. (5) The applicant contends he was never given the chance for rehabilitation. The Board considered this contention but concluded relief was warranted for the reasons stated above. (6) In reference to counsel's request for pre-decisional documents, it is not the practice of the Army Review Boards Agency to provide pre-decisional documents prior to adjudication. Once the case has been adjudicated, the applicant and counsel will be provided a copy of the final decision. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and applicant's post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14- 12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because applicant's quality of service, including combat service, combined with applicant's post service accomplishments when weighed against the basis of separation misconduct of a one- time drug use made the current discharge characterization inequitable. (2) The Board voted to change the separation authority to AR 635-200, paragraph 14- 12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN in line with the Board rationale stated above. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. 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 AR20210003157 7