1. Applicant's Name: a. Application Date: 15 September 2020 b. Date Received: 22 September 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to an honorable discharge. The applicant seeks relief contending, in effect, the general discharge which was based on patterns of misconduct was because of undiagnosed post-traumatic stress disorder (PTSD). The applicant is currently rated at 100 percent by the Department of Veteran Affairs (VA) and has received many years of inpatient and outpatient treatment. b. Board Type and Decision: In a records review conducted on 27 September 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's behavioral health diagnosis mitigating the applicant's misconduct of abuse of illegal drugs. 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. Due to the applicant's medical diagnosis, the Board determined the reentry code was proper and equitable and voted not to change it. 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, Abuse of Illegal Drugs) / AR 635-200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 18 November 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 May 2003 / 4 years b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 5 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SWA / Iraq (NIF) f. Awards and Decorations: ARCOM, NDSM, CIB, GWTSM, GWOTEM, JMUA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant's DD Form 214, reflects the applicant had not completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12c(2), with a narrative reason of Misconduct, Abuse of Illegal Drugs. The DD Form 214 was authenticated with the applicant's signature. Character letter, 4 August 2023, from the applicant's first sergeant while serving, states their home station was in Germany. The applicant succumbed to using alcohol as a form of self- medicating to cope with PTSD following combat. It was a very challenging time because the resources to help Soldiers such as the applicant were scarce and lacked expertise. Character letter, 2 September 2023, from the applicant's company commander while serving, states they served with A Company, 1st Battalion, 36th Infantry in Friedberg, Germany. In 2005 the unit was recovering from a deployment to Iraq and was preparing for an upcoming combat deployment. The applicant reported to duty intoxicated and the command pursued a chapter. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: VA disability rating decision, 12 January 2021, reflecting the applicant was rated 100 percent disability for PTSD and major depressive disorder with alcohol use disorder and cannabis use disorder. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, two character letters, VA Summary of Benefits, VA Rating Decision. 6. POST SERVICE ACCOMPLISHMENTS: Bachelor's degree in political science and a doctorate in Law from the University of Tennessee. General Manager of the PTSD Foundation of America and a Faculty Consultant for the National Association of Drug Court Professions and Justice for Veterans. In addition is an attorney, husband, and father. 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 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) Paragraph 2-2 (Notice), stated commanders were to notify the Soldier in writing of the following: (a) Provide the basis of the proposed separation, including the circumstances upon which the action was based, and a reference to the applicable regulatory separation provision. (b) Indicate whether the proposed separation could result in discharge and state the least favorable character of service available for the proposed separation, and the recommended type of discharge and character of service. (c) Advise the Soldier of his/her rights under the separation process, to include the right to: * consult with military or civilian counsel at their own expense * submit statements in their own behalf * obtain copies of documents that will be sent to the separation authority supporting the proposed separation * waive their rights (2) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (3) 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. (4) 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. (5) 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. (6) 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. (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: (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. 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 Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The applicant's DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c(2), by reason of Misconduct, Abuse of Illegal Drugs), with a characterization of service of general (under honorable conditions). The applicant's DD Form 214 shows the applicant served 2 years, 5 months, and 22 days during which the applicant served 2 years, 1 month, and 5 days of foreign service. The applicant was assigned to A Company, 1st Battalion, 5th Infantry Regiment, Germany. The applicant's first sergeant and company commander's character letters states the applicant was deployed to Iraq, however the applicant's time served in Iraq was not annotated on the DD Form 214. They also state the applicant was discharged because of the applicant's use of alcohol. The applicant was 20 years old at the time of the discharge. The applicant contends, in effect, the general discharge which was based on patterns of misconduct was because of undiagnosed PTSD. The applicant provided VA disability rating decision, 1 January 2021, reflecting the applicant was rated 100 percent disability for PTSD and major depressive disorder with alcohol use disorder and cannabis use disorder. The applicant's AMHRR is void of a mental status evaluation. The applicant's character letters, contends, in effect, the applicant has a bachelor's degree in political science and a doctorate in Law from the University of Tennessee. General Manager of the PTSD Foundation of America and a Faculty Consultant for the National Association of Drug Court Professions and Justice for Veterans. In addition is an attorney, husband, and father. The Army Discharge Review Board 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 may 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. The character letters provided with the application speak highly of the applicant. They both recognize the applicant's outstanding conduct and accomplishments after leaving 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, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD/MDD (100%SC); Bipolar DO (which is subsumed under MDD); Anxiety DO unspecified (which is subsumed under PTSD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection establishes the conditions listed in #1 above as associated with active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that he applicant has two BH conditions, PTSD and MDD, which mitigate most of his misconduct. As there is a nexus between these conditions and the use of illegal substances and/or alcohol to self medicate painful emotional symptoms, there is a nexus between his diagnoses of PTSD and MDD and his wrongful use of drugs (inhalants). These conditions do not, however, mitigate the offense of making a false official statement as they do not affect one's ability to tell right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's PTSD, Bipolar Disorder and Anxiety Disorder outweighed the drug abuse basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends, in effect, the general discharge which was based on patterns of misconduct was because of undiagnosed PTSD. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's drug abuse charges. (2) The applicant's character letters, contends, in effect, the applicant has a bachelor's degree in political science and a doctorate in Law from the University of Tennessee. General Manager of the PTSD Foundation of America and a Faculty Consultant for the National Association of Drug Court Professions and Justice for Veterans. In addition is an attorney, husband, and father. The Board recognizes and appreciates the applicant's willingness to serve and success post service and considered this contention during board proceedings along with the totality of the applicant's service record. c. The Board determined the discharge is inequitable based on the applicant's behavioral health diagnosis mitigating the applicant's misconduct of abuse of illegal drugs. 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. Due to the applicant's medical diagnosis, the Board determined the reentry code was proper and equitable and voted not to change it. d. 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 drug abuse. 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. Based on the applicant's medical diagnosis, the board determined the RE code was proper and equitable. 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 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 AR20210005578 1