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, he believes his discharge is incorrect because he was an exemplary Soldier and made one mistake during his whole time in service. The former service member's command did not offer him any help when he told them he suffered from PTSD. The applicant's command could have enrolled him in the Army Substance Abuse Program and reclassified him as opposed to just kicking him out of the Army. The applicant needs to get this discharge upgraded so he can join the Los Angeles City Fire Department. It will help the applicant with his application process and allow him to move forward with his head held high. In a records review conducted on 3 March 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD outweighing the drug use misconduct that was the basis for separation. 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. 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: 9 July 2012 c. Separation Facts: The applicant's AMHRR does not contain a separation file; however, the applicant provided a copy of the separation file. (1) Date of Notification of Intent to Separate: 6 June 2012 (2) Basis for Separation: The applicant was informed of the following reasons: He tested positive for marijuana (THC), a schedule 1 controlled substance on 20 January 2012. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 6 June 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 18 June 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 September 2009 / 5 years b. Age at Enlistment / Education / GT Score: 19 / some college / 112 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 2 years, 9 months, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea, SWA / Iraq (3 August 2011 - 23 November 2011) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, KDSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 7 February 2012, reflects the applicant tested positive for THC 108 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 20 January 2012. CID Report of Investigation - Initial Final, dated 19 March 2012, reflects the investigation established probable cause to believe the applicant wrongfully used marijuana when he submitted a urine specimen which subsequently tested positive for the presence of marijuana. FG Article 15, dated 17 April 2012, for wrongfully using marijuana (THC), a controlled substance on or about 20 January 2012. The punishment consisted of a reduction to E-1; forfeiture of $745 pay per month for two months (suspended); and, extra duty for 30 days; and oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 29 March 2012, 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 substance use (Cannabis). It also showed a positive screening for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; self-authored statement; four third-party statements; arcpoint labs results; National Registry of Emergency Medical Technicians letter; emergency medical technician certificate; National Registry Emergency Medical Technicians certificate; FC test results; email firefighter interview; DA Form 638; case separation file. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has gone back to college to pursue a career in firefighting and has received a EMT degree and national certification. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. (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 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 he suffered from PTSD. The applicant provided case separation documentation which reflects a positive screening for PTSD. The record shows the applicant underwent a mental status evaluation (MSE) on 29 March 2012, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends his command could have enrolled him in the Army Substance Abuse Program and reclassified him as opposed to just kicking him out of the Army. Army Regulation 635-200, paragraph 1-17d(2), 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 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. The applicant contends other Soldiers with similar offenses were allowed to stay in the Army. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. 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 will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends he has gone back to college to pursue a career in firefighting and has received a EMT degree and national certification. 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 third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct 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. The applicant was diagnosed and service connected by the VA with PTSD that may mitigate the drug use misconduct 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 applicant was diagnosed and service connected by the VA with PTSD. Service connection establishes that PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. After applying liberal consideration, the Board's Medical Advisor opines that the drug use misconduct that was the basis for separation is medically mitigated by applicant's PTSD because applicant self-medicated with marijuana. (4) Does the condition or experience outweigh the discharge? Yes. The Board, after applying liberal consideration, concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's PTSD outweighed the drug use misconduct that was the basis for applicant's separation. a. Response to Contentions: (1) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and voted to upgrade the characterization of service due to applicant's PTSD outweighing the mitigated applicant wrongful use of marijuana. (2) The applicant contends he suffered from PTSD. The Board liberally considered this contention during the proceedings that concluded with the Board voting to upgrade the characterization of service. (3) The applicant contends good service, including a combat tour. The Board considered the applicant's length and quality of service to include combat service during the proceedings but voted to change the characterization of service because of applicant's medically mitigated basis for separation. (4) The applicant contends his command could have enrolled him in the Army Substance Abuse Program and reclassified him as opposed to just kicking him out of the Army. 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 outweighing the applicant's wrongful use of marijuana as the bases for separation. (5) The applicant contends other Soldiers with similar offenses were allowed to stay in the Army. The Board determined that applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. (6) 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. (7) The applicant contends he has gone back to college to pursue a career in firefighting and has received a EMT degree and national certification. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board determined that the applicant's PTSD outweighed the wrongful use of marijuana as the rationale for upgrading the characterization of service. b. The Board determined the discharge is inequitable based on the applicant's PTSD outweighing the medically mitigated drug use misconduct that was the basis for separation. c. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigated the applicant's misconduct of wrongful use of marijuana. 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 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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 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 AR20210003203 5