1. Applicant's Name: a. Application Date: 22 September 2020 b. Date Received: 29 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 to honorable. (2) The applicant seeks relief stating on average, their conduct and efficiency ratings were very good. After they returned from Afghanistan, they started to self-medicate which led to a positive urinalysis drug testing. Their previous service was honorable. (3) They were wounded while in Afghanistan and instead of seeking the proper help they began to self-medicate. At their young age, they did not realize the consequences that their choice would have on the rest of their life. They believe their mental health deteriorated after they service and was wounded in Afghanistan. They were not offered any readjustment counseling when they returned from their deployment. They have since been diagnosed with mental health issues (post-traumatic stress disorder) and is actively seeking treatment to try to live a normal life. b. Board Type and Decision: In a records review conducted on 17 November 2023, 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 circumstances surrounding discharge (PTSD and MDD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and 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, and the reentry code to RE-3. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / Army Regulations 635-200, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 25 January 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 December 2018 (2) Basis for Separation: wrongful use of marijuana (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 10 December 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 18 December 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 January 2018 / 4 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G1P, Culinary Specialist / 3 year, 6 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None / Afghanistan (17 September 2017 - 21 January 2018) f. Awards and Decorations: ARCOM-C, AGCM, NDSM, GWTSM, ACM-CS, ASR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) Electronic Copy of DD 2624, dated 20 October 2018, reflects the applicant tested positive for THC 356, >LOL during an inspection random (IR) conducted on 25 September 2018. (2) A DA Form 4856 (Developmental Counseling Form), dated 23 October 2018, reflects the applicant received counseling for testing positive for marijuana use during a urinalysis. Key Points of Discussion states the applicant will be flagged in addition to recommended for Uniform Code of Military Justice and also recommended for involuntary separation from the Army. (3) A DD Form 2807-1 (Report of Medical History) dated 25 October 2018, the applicant marked "No" for all questions to "Have you ever had, or no do you have;" however, the applicant marked "Yes" to item 21 (Have you ever been a patient in any type of hospital?) and entered in item 29 (Explanation of "Yes" Answers), Holly Hill Hospital (Mental Health). Note, there is not entry for a wound in a combat zone. (4) A DD Form 2808 (Report of Medical Examination) dated 25 October 2018, the examiner indicated the applicant is qualified for separation with no defects or diagnoses. (5) A DA Form 3822 (Report of Mental Status Evaluation), dated 25 October 2018, reflects the applicant had no duty limitations due to behavioral health reasons, meets medical retention standards and is cleared for administrative action. Section IV (Diagnoses) reflects no behavioral health diagnoses and no other medical diagnoses. The psychologist states there is no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels (i.e., does not qualify for a Medical Evaluation Board). The applicant is mentally responsible, can distinguish right and wrong and possesses sufficient mental capacity to understand and participate intelligently in any administrative proceedings. The psychologist recommended that the applicant's command refer them to Substance Use Disorder Clinical Care for evaluation. (6) A memorandum, Headquarters and Headquarters Company, 307th Brigade Support Battalion, subject: Separation under Army Regulation 635-200, Paragraph 14-12c(2), Misconduct-Abuse of Illegal Drugs [Applicant], 4 December 2018, 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(2), misconduct-abuse of illegal drugs, with a recommended characterization of service of general (under honorable conditions) for wrongful use of marijuana. On the same day the applicant acknowledged the basis for the separation and of the right available to them (7) On 10 December 2018, the company commander submitted the request to separate the applicant prior to their expiration term of service. The company commander states there has been no rehabilitation attempts and the is no other derogatory was noted. (8) On 10 December 2018, the applicant completed their election of rights signing they had been advised by counsel of the basis for their separation and its effects and of the rights available to them. (9) A memorandum, Headquarters, 1st Brigade Combat Team, subject: Separation under Army Regulation 635-200, Paragraph 14-12c (2), Misconduct-Abuse of Illegal Drugs [Applicant], dated 18 December 2018, the separation authority directed that the applicant' be separated from the Army prior to the expiration of current term of service and their service be characterized as General (Under Honorable Conditions). (10) A memorandum, Headquarters, 1st Brigade Combat Team, subject: Brigade Judge Advocate Review, dated 8 January 2019, reflects the applicant's separation has been reviewed for legal sufficiency and meets all regulatory requirements for separation. (11) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged on 25 January 2019, with 3 year, 6 months, and 6 days of net active service this period. Item 18 (Remarks) states - * Continuous Honorable Active Service - 20150720 - 20180107 * Member has completed the first full term of service (12) The Enlisted Record Brief, dated 28 January 2019, reflects the applicant was advanced to the rank/grade of specialist/E-4 on 1 May 2017 and demoted to the rank/grade of private two/E-2 on 30 November 2018. They had one oversea or deployment combat duty to Afghanistan, 17 September 2017 - 21 January 2018. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): None (1) Applicant provided: VA Medical Record excerpt reflecting their diagnoses of PTSD, Major Depression Disorder, and Insomnia (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) reflecting their request for an upgrade in the characterization of their service * VA Medical Record excerpt reflecting their diagnoses of PTSD, Major Depression Disorder, and Insomnia * Memorandum, Office of the Under Secretary of Defense, subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment * DD Form 214, reflecting their service in Afghanistan 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the 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, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (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) A Under Other Than Honorable Conditions Discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. (4) 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. (5) 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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c(2), 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 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)) dated 28 November 2016, provided a comprehensive alcohol and drug abuse prevention and control policies, procedures, and responsibilities for Soldiers of all components. The ASAP is a command program that emphasizes readiness and personal responsibility. The ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier's chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army Values, the Warrior Ethos, and the standards of performance, discipline, and readiness necessary to accomplish the Army's mission. (1) Unit commanders must intervene early and refer all Soldiers suspected or identified as alcohol and/or drug abusers to the ASAP. The unit commander should recommend enrollment based on the Soldier's potential for continued military service in terms of professional skills, behavior, and potential for advancement. (2) ASAP participation is mandatory for all Soldiers who are command referred. Failure to attend a mandatory counseling session may constitute a violation of Article 86 (Absence Without Leave) of the UCMJ. (3) Alcohol and/or other drug abusers, and in some cases dependent alcohol users, may be enrolled in the ASAP when such enrollment is clinically recommended. Soldiers who fail to participate adequately in, or to respond successfully to, rehabilitation will be processed for administrative separation and not be provided another opportunity for rehabilitation except under the most extraordinary circumstances, as determined by the Clinical Director in consultation with the unit commander. (4) All Soldier who test positive for illicit drugs for the first time will be evaluated for dependency, disciplined, as appropriate, and processed for separation within 30 calendar days of the company commander receiving notification of the positive result from the ASAP. Retention should be reserved for Soldiers that show clear potential for both excellent future service in the Army and for remaining free from substance abuse. Soldiers diagnosed as drug dependent will be offered rehabilitation prior to separation. h. Manual for Courts-Martial, United States (2016 Edition) stated, 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). i. 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 the agency. 8. SUMMARY OF FACT(S): a. The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. b. The applicant's AMHRR reflects the received developmental counseling for testing positive for marijuana, recommended to receive punishment under the Uniform Code of Military Justice and involuntary separation from the service The applicant's DD Form 214 indicates their discharge under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), by reason of Misconduct (Drug Abuse), with a characterization of service of general (under honorable conditions). The applicant completed 1 year and 18 days of their 4-year reenlistment contractual obligation. 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. Neither the applicant nor the AMHRR provide documentation of a diagnosis of PTSD during the applicant's military service. e. Published Department of Defense 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: e. 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: PTSD due to deployment and Major Depressive DO. (Note-diagnoses of Adjustment DO and Depressive DO, unspecified, are subsumed under the diagnosis of Major Depressive DO.) (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that MDD was diagnosed while on active duty. PTSD was diagnosed by VA post-military. VA medical documentation indicates the PTSD diagnosis is related to his Afghanistan deployment. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has two mitigating BH conditions, PTSD due to combat and MDD. (Note-diagnoses of Adjustment DO and Depressive DO unspecified is subsumed under MDD). As there is an association between PTSD/MDD and use of illicit drugs to self-medicate painful emotional symptoms, there is a nexus between his diagnoses of PTSD and MDD and his wrongful use of THC. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience outweighed the basis of separation- wrongful use of marijuana. f. Prior Decisions Cited: None g. Response to Contention(s): (1) The applicant contends their conduct and efficiency ratings were very good. 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 and MDD fully outweighing the applicant's wrongful use of marijuana as the basis for separation. (2) The applicant contends they were wounded while in Afghanistan and instead of seeking the proper help they began to self-medicate. The Board considered this contention and determined that there is an association between PTSD/MDD and use of illicit drugs to self- medicate painful emotional symptoms, there is a nexus between his diagnoses of PTSD and MDD and his wrongful use of THC. (3) The applicant contends at their young age at the time, they did not realize the consequences that their choice would have on the rest of their life. 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 and MDD fully outweighing the applicant's wrongful use of marijuana as the basis for separation. (4) The applicant contends they were not offered any readjustment counseling when they returned from their deployment from Afghanistan. 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 and MDD fully outweighing the applicant's wrongful use of marijuana as the basis for separation. h. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and circumstances surrounding the discharge (PTSD and MDD diagnoses). 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, and the reentry code to RE-3. i. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service based on the following reasons: the Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board found sufficient evidence of in-service mitigating factors (Length, Quality, Combat) and concurred with the conclusion of the medical advising official that the applicant's PTSD and MDD does outweigh the applicant's wrongful use of marijuana. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. (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 Board voted to change the RE code to RE 3. 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: 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 AR20210005351 1