1. Applicant's Name: a. Application Date: 12 September 2020 b. Date Received: 16 September 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade of their character of service to honorable, separation code, reentry code and narrative reason for separation. (2) The applicant seeks relief contending, stating their discharge was inequitable because it was based on one isolated incident, even though they have completed 80 months of previous service with no other adverse action. They were suffering from untreated Post- Traumatic Stress Disorder (PTSD) and they eventually began self-medicating with prescription narcotics and this was the reason of their misconduct, punishment under the Uniform Code of Military Justice (UCMJ), and discharge. b. Board Type and Decision: In a records review conducted on 18 October 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service. 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. The reentry code remains RE-3. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct, (Serious Offense) / Army Regulation 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 25 April 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 March 2012 (2) Basis for Separation: The applicant was informed of the following reason: the possession of narcotics. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 12 March 2012 (5) Administrative Separation Board: On 12 March 2012, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 March 2009 / 4 years b. Age at Enlistment / Education / GT Score: 22 / NIF / 91 c. Highest Grade Achieved / MOS / Total Service: E-5 / 31B1P, Military Police / 6 years, 8 months, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea, SWA / Iraq (22 August 2006 - 8 November 2007 f. Awards and Decorations: JSCM, ARCOM-2, AAM-2, MUC, AGCM-2, NDSM, GWTSM, KDSM, ICM-CS, NCOPDR-2, ASR, OSR-2, CAB g. Performance Ratings: 1 October 2007 - 30 September 2008 / Among the Best 1 October 2008 - 30 September 2009 / Among the Best 1 October 2009 - 30 September 2010 / Among the Best 1 October 2010 - 30 September 2011 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: (1) A memorandum, U.S. Army Criminal Investigation Command subject: CID Report of Investigation - Final, dated 28 September 2011, reflects the applicant as a named subject with the violation of wrongful possession of Percocet, between on or about 1 January 2011 to on or about 31 January 2011. Trial Counsel, Office of the Staff Judge Advocate, 3rd Brigade Combat Team, 82nd Airborne Division, Fort Bragg, NC, opined there was probable cause to believe the applicant committed the offense of possession of a controlled substance. (2) A memorandum, Headquarters and Headquarters Company, 3rd Brigade Special Troops Battalion, subject: Separation under Army Regulation 635-200, Paragraph 14-12c, (Commission of Serious Offense) [Applicant], 6 March 2020, the applicant's company commander notified the applicant of their intent to separate them under the provisions of Army Regulation 635-200, Chapter 14-12c, Commission of a Serious Offense with a recommended characterization of service of general (under honorable conditions) for the possession of narcotics. On the same day the applicant acknowledged the basis for the separation and of the right available to them. (a) On 12 March 2012, with advice from counsel, the applicant submitted a waiver of his right to an administrative separation board conditioned upon receiving a general, under honorable conditions characterization of service. (b) On 27 March 2012, the applicant's commander recommended the initiation of separation action for the possession of narcotics. The record of other disciplinary action include, on 12 January 2012, the applicant received a Field Grade Article 15 for possession of Percocet. The punishment consisted of a reduction to the rank/grade of specialist/E-4, forfeiture of $1,162.00 pay for 2 months, and extra duty for 45 days. The commander statement on why they did not consider it feasible or appropriate to accomplish other disposition provides, "This Soldier was a prior noncommissioned officer buying prescription medication from a Junior enlisted soldier. This unit cannot have NCO's that do not uphold the standard of the United States Army." (6) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged on 25 April 2012, with 6 year, 8 months, and 3 days of net active service this period. The applicant has completed the first full term of service; however, they only completed 3 years and 1 month of their reenlistment contractual obligation of 4 years. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Department of Veterans Affairs (VA) letter, dated 30 December 2016, reflecting the applicant was rated 50-percent disability for PTSD with depressive disorder. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: * DD Form 293 (Application for the Review of Discharge) * Two DA Forms 2166-8 (NCO Evaluation Report), covering the periods 1 October 2007 through 30 September 2009, reflecting their overall potential rating as "Among the Best" * DD Form 214 * VA Letter, reflecting the applicant's 50-percent disability rating for PTSD with depressive Disorder * Letter of Completion, dated 1 September 2018, reflecting the applicant's completion of an intensive inpatient treatment program, participating in daily group therapy consisting of Relapse Awareness Workshop, Cognitive Behavioral Therapy, Stress Management, Anger Management, Feeling Group, Family Issues, Process Groups and Family Groups 6. POST SERVICE ACCOMPLISHMENTS: None submitted with application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, (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, Title 10, U.S. Code, Section 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 (DoD) 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; Title 10, U.S. Code, Section 1553; and DoD Directive 1332.41 and DoD Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 6 September 2011, provided the basic authority for the separation of enlisted personnel. (1) 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. (2) 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. (3) Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. 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. Paragraph 14-12c(2) (Abuse of Illegal Drugs is Serious Misconduct), stated, however; 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. A Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. (4) Chapter 15 (Secretarial Plenary Authority), currently in effect, 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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 DoD Instructions 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) 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. g. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) provides comprehensive alcohol and drug-abuse prevention and control policies, procedures, and responsibilities for Soldiers of all components for ASAP services. Substance abuse contributes to high-risk behaviors, runs counter to Army Values and erodes personal readiness. ASAP is a mechanism within the Army Resilience Directorate system of support that, when administered appropriately, through engaged and empowered leadership, supports building personal readiness and resilience, and optimizes performances. (1) The command role in substance abuse prevention, drug and alcohol testing, early identification of problems, and administrative or judicial actions is essential. Commanders will ensure that all officials and supervisors support the ASAP. Unit commanders must intervene early and refer all Soldiers suspected of alcohol or other drug-use problems to behavioral health for a Substance Use Disorder evaluation. The unit commander will support treatment plans for all Soldiers. (2) ASAP participation is mandatory for all Soldiers who are command referred and/or subsequently enrolled in mandatory treatment. Failure to attend a mandatory counseling session may constitute a violation of Article 86 (Absence Without Leave) of the UCMJ. (3) Soldiers who fail to participate adequately in or to respond successfully to treatment will be processed for administrative separation. In addition to existing separation policies for alcohol or other drug-abuse treatment failures, Soldiers with a subsequent alcohol or drug- related incident of misconduct at any time during the 12-month period following treatment or during the 12-month period following removal from the treatment program, for any reason, will be processed for separation as an alcohol or drug-abuse rehabilitation failure. (4) All Soldier who are identified as having unauthorized use of substances or suspected substance abuse, will be referred to the Behavioral Health clinic for a Substance Use Disorder evaluation within 5 duty days of receipt of the validated positive drug test result. f. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. g. Manual for Courts-Martial, United States, states military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the Armed Forces. Appendix 12 (Maximum Punishment Chart) Manual for Courts-Martial shows the maximum punishments include punitive discharge for violating the following Article 112a (Wrongful Use, Possession, etc., of Controlled Substances) may be subject to a punitive discharge, confinement, and/or forfeiture of pay. 8. SUMMARY OF FACT(S): a. The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. The applicant's AMHRR contains the specific facts and circumstances concerning the events which led to the discharge from the Army; however, the separation authority memorandum is not in evidence; however, the available evidence does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature which provides the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). The applicant received a general (under honorable conditions) characterization of service rather than a under other than honorable conditions which is normally considered appropriate. They completed 1 year, 5 months, and 1 day of their 4-year reenlistment contractual obligation prior to the misconduct that led to their being discharged. c. Chapter 14 establishes policy and prescribes procedures for separation members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. d. The AMHRR does not provide documentation of a diagnosis of a mental health diagnosis during the applicant's term of service. e. Published DoD guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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 that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment DO with anxiety and depressed mood; PTSD; Depressive DO NOS. (Note-diagnoses of Adjustment DO and Depressive DO NOS are subsumed under diagnosis of PTSD); ADHD (note-ADHD is a pre-existing condition and, as such, does not fall under the purview of liberal consideration) (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found Adjustment DO was diagnosed during active duty. Service connection establishes PTSD/Depressive DO NOS began during active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial The Board's Medical Advisor applied liberal consideration and opined that the applicant has a BH condition, PTSD, which mitigates possession of a narcotic. As there is an association between PTSD and use of illicit drugs, there is a nexus between his diagnosis of PTSD and his charge for possession of a controlled substance. PTSD does not, however, mitigate the applicant's acts of actively soliciting to purchase narcotic drugs from junior service members as PTSD does not affect one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience did not outweigh the basis of separation. b. Prior Decisions Cited: None c. Response to Contention(s): (1) The applicant contends that their discharge was inequitable because it was based on one isolated incident, even though they have completed 80 months of previous service with no other adverse action. The available evidence provides, after consulting with counsel, the applicant submitted a waiver of their right to an administrative separation board based on the condition they would receive a general, under honorable conditions characterization of service. The Board considered this contention and the applicant's years of service but determined that these factors did not outweigh the applicant's offense of purchasing narcotic drugs from a junior enlisted Soldier. (2) The applicant contends they were suffering from untreated PTSD, and they eventually began self-medicating with prescription narcotics, and this was the reason of their misconduct, punishment under the UCMJ, and discharge. The Board considered this contention and determined that PTSD mitigates possession of a narcotic. As there is an association between PTSD and use of illicit drugs, there is a nexus between his diagnosis of PTSD and his charge for possession of a controlled substance. PTSD does not, however, mitigate the applicant's acts of actively soliciting to purchase narcotic drugs from junior service members as PTSD does not affect one's ability to distinguish right from wrong and act in accordance with the right. (a) Neither the AMHRR nor the applicant provide evidence that shows PTSD. (b) Although the applicant submitted a copy of a VA disability rating. Disabilities which occur or which worsen after a Soldier is separated are treated by and compensated for by the VA. Any claims or issues concerning treatment or compensation for service-connected disabilities should be addressed to that Agency. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. d. The Board determined that the discharge is, at this time, proper and equitable, in light the discharge is inequitable based on the applicant's length and quality of service, to include combat service. 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. The reentry code remains RE-3. e. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service based on the following reasons. The applicant has an in-service diagnosis of Adjustment DO with anxiety and depressed mood; PTSD; Depressive DO NOS. (Note-diagnoses of Adjustment DO and Depressive DO NOS are subsumed under diagnosis of PTSD); ADHD (pre-existing condition and, as such, does not fall under the purview of liberal consideration). The applicant is service connected for PTSD by the VA. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a BH condition, PTSD, which mitigates possession of a narcotic. As there is an association between PTSD and use of illicit drugs, there is a nexus between his diagnosis of PTSD and his charge for possession of a controlled substance. PTSD does not, however, mitigate the applicant's acts of actively soliciting to purchase narcotic drugs from junior service members as PTSD does not affect one's ability to distinguish right from wrong and act in accordance with the right. Panel members discussed the applicant's contentions. The BH diagnosis of PTSD mitigated the possession and one-time use of Percocet. The Board further, deliberated over the non-BH mitigation of the purchase of the prescription drug from junior service. Taking into consideration the BH mitigation of the possession and use of the controlled substance, a Board Issue (B/I) was raised on the basis of discharge inequitable. The applicant's overall service record (length, combat, quality of service) and elapsed time since the misconduct, mitigates the remaining misconduct. The Board accepted the B/I by 4-1 vote and concurred based on mitigation of the remaining misconduct, the current discharge warranted an upgrade. (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: 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 AR20210005219 1