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 misconduct was due to an alcohol/drug addiction resulting from applicant's back and leg injuries and trauma which the applicant incurred while in basic training. The applicant never had any physical or emotional pain until applicant was injured, which caused applicant to drink. Extensive Department of Veterans Affairs (VA) files, which rated applicant 80 percent service-connected disabled for depression, anxiety, post- traumatic stress disorder (PTSD), and other conditions, serve as proof. In a records review conducted on 11 January 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contains the erroneous reentry eligibility (RE) code of 4. In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations. 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 14 November 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 October 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to report to the appointed place of duty numerous times and disobeyed a lawful written order by drinking, wearing civilian clothes, not returning to applicant's proper living quarters, and leaving post while in Phase IV. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 October 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 January 2008 / 3 years, 32 weeks b. Age at Enlistment / Education / GT Score: 22 / GED / 104 c. Highest Grade Achieved / MOS / Total Service: E-2 / None / 11 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Record (MFR), subject: Recommendation for Academic Recycle [Applicant], dated 20 June 2008, reflects the applicant's group leader recommended the applicant be recycled due to the applicant missing 40 academic hours of training, failing exams, and failing to complete assigned homework assignment. Student Recycle/Relief form, dated 20 June 2008, shows the applicant's immediate commander approved for the applicant to be recycled from the 35M10 (Human Intelligence Collector) Course, Class 022-08. CG Article 15, dated 29 July 2008, on three occasions, for without authority, failing to go at the time prescribed to the appointed place of duty (29, 30 June and 8 July 2008) and failing to obey a lawful order from Captain P., by consuming alcohol while in Phase IV. The punishment consisted of forfeiture of $314 (suspended); and, extra duty and restriction for 14 days. MFR, subject: Recommendation for Relief of [Applicant] dated 18 August 2008, reflects the applicant's group leader recommended the applicant be relieved from the 35M10 Course due to excessive absences and two test failures. Report of Mental Status Evaluation, dated 2 October 2008, reflects the applicant was cleared for any action deemed appropriate by the command. The applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. Report of Medical History, dated 9 September 2008, the examining medical physician noted in the comments section: Low back pain since February 2008 at basic training; referred to physical therapy, then seen at Raymond W. Bliss Army Health Center (RWBACH) MI Student Clinic (MISC) May 2008; referred to physical therapy, over three months of therapy, multiple [illegible]; orthopedic referral August 2008; recommend orthopedic follow up scheduled September 2008. Report of Medical Examination, dated 10 September 2008, the examining medical physician noted in the summary of defects and diagnoses section: Low Back Pain. Three Developmental Counseling Forms, for various acts of misconduct and numerous Developmental Counseling Forms regarding course academic failure matters. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided VA disability rating decision, dated 23 August 2019, which reflects the applicant was rated 70 percent disability for major depressive disorder, with anxious distress, severe; opioid use disorder; stimulant use disorder (previously rated as adjustment disorder with depressed mood, chronic, mild (claimed as insomnia, PTSD, sleep disturbances, and drug abuse)). The applicant provided VA letter, dated 24 October 2019, reflecting applicant was rated 80 percent disability combined evaluation. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293; VA disability rating decision; ARBA, Case Management Division letter; National Personnel Records Center letter; DD Form 214 (two copies); Executive Summary; CG Article 15; five DA Forms 4856; VA letter of benefits. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the 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) 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. 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. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as "4." The discharge packet confirms the separation authority approved the discharge by reason of pattern of misconduct. Soldiers processed for pattern of misconduct will be assigned an SPD Code of JKA and an RE Code of "3." The applicant contends applicant became addicted to alcohol/drugs due to back and leg injuries suffered while in basic training which caused applicant to self-medicate. The AMHRR reflects the applicant had lower back pain and received physical therapy for pain and the applicant received a company grade Article 15 and one of the offenses was alcohol related. The AMHRR is void of any diagnoses of an alcohol dependency or drug addiction. The applicant contends a rating of 80 percent disabled by the VA for depression, anxiety, PTSD, as well as other conditions. The applicant provided VA documentation to show applicant was rated 70 percent disability for major depressive disorder, with anxious distress, severe; opioid use disorder; stimulant use disorder (previously rated as adjustment disorder with depressed mood, chronic, mild (claimed as insomnia, PTSD, sleep disturbances, and drug abuse)). The applicant was rated 80 percent for a combined evaluation. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 2 October 2008, which indicates the applicant was cleared for any action deemed appropriate by the command; mentally responsible; and, had the mental capacity to understand and participate in the proceedings. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. 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 DoD and VA medical records and found the applicant was diagnosed with Alcohol Intoxication, Opioid Intoxication, Opioid Dependence, Major Depression, Alcohol Dependence, and Other psychoactive substance abuse with psychoactive substance induced mood disorder, which, in the opinion of the Board's Medical Advisor could potentially mitigate failure to report to the appointed place of duty numerous times and disobeying a lawful written order by drinking, wearing civilian clothes, not returning to proper living quarters, and leaving post while in Phase IV which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. The Board arrived at this finding based upon AHLTA has in-service BH diagnoses of Alcohol Intoxication and Opioid Intoxication. JLV contains additional post-service BH diagnoses of Opioid Dependence, Major Depression, Alcohol Dependence, and Other psychoactive substance abuse with psychoactive substance induced mood disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board arrived at this finding based upon even after reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that even though the applicant was diagnosed post-service with Major Depressive Disorder there is no evidence this existed prior to discharge from service. Even if it had been, the diagnosis of Major Depression would only be a partially mitigating factor for the misconduct, in that it would mitigate substance use, but not wearing civilian clothes, not returning to proper living quarters, and leaving post while in Phase IV of training. As mentioned above substance use appears to be a willful act to get discharged from the military for financial reasons and not related to applicant's injury or any BH condition. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's failure to report to the appointed place of duty numerous times and disobeying a lawful written order by drinking, wearing civilian clothes, not returning to proper living quarters, and leaving post while in Phase IV outweighed the applicant's Alcohol Intoxication, Opioid Intoxication, Opioid Dependence, Major Depression, Alcohol Dependence, and Other psychoactive substance abuse with psychoactive substance induced mood disorder for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends they became addicted to alcohol/drugs due to back and leg injuries suffered while in basic training which caused applicant to self-medicate. The Board concluded that applicant's self-medication does not outweigh the frequency and severity of applicant's misconduct that was the basis for applicant's separation. Further, the Board determined that the applicant had but did not pursue any one of the many legitimate avenues available to service members requesting assistance with alcohol and drug addiction. (2) The applicant contends a rating of 80 percent disabled by the VA for depression, anxiety, PTSD, as well as other conditions. The Board liberally considered all of the applicant's medical conditions but found those potentially mitigating BH conditions did not outweigh the basis for applicant's separation. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. 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 to all the BH evidence, the applicant's Alcohol Intoxication, Opioid Intoxication, Opioid Dependence, Major Depression, Alcohol Dependence, and Other psychoactive substance abuse with psychoactive substance induced mood disorder did not outweigh the offenses of failure to report to the appointed place of duty numerous times and disobeying a lawful written order by drinking, wearing civilian clothes, not returning to proper living quarters, and leaving post while in Phase IV. 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, and the reason the applicant was discharged was both proper and equitable. (3) The Board voted to change the applicant's RE code because, although the Board found the discharge proper and equitable and there were no BH diagnoses which mitigated the misconduct to warrant relief, it was found that there was an administrative error on the applicant's DD Form 214, thus making the current code improper. The corrected RE code will read RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. Change RE Code to: RE-3 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 AR20210003316 1