1. Applicant's Name: a. Application Date: 26 May 2020 b. Date Received: 16 June 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 honorable. The applicant seeks relief contending, in effect, the applicant had a personal crisis and requested help from command but was ignored. The applicant smoked marijuana once to cope with the crisis. The applicant was called a racial slur by a noncommissioned officer and was racially discriminated against by an executive officer. The applicant contends the narrative reason for the discharge is interfering with gainful employment as a civilian. b. Board Type and Decision: In a records review conducted on 02 June 2023, and by a 5-0 vote, the board determined that the discharge was inequitable based on the applicant's in- service mitigating factors of length and quality of service and the applicant's Chronic Adjustment DO (CAD) mitigate the applicant's misconduct- wrongful use of marijuana. 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 Board determined the RE 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 (Drug Abuse) / AR 635- 200 / Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 21 August 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 July 2017 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 2 August 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 8 August 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 December 2016 / 5 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D10, Chemical Operations Specialist / 3 years, 1 month, 7 days d. Prior Service / Characterizations: RA, 15 July 2014 - 15 December 2016 / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM-3, GWOTSM, KDSM, ASR, OSR, COA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 13 March 2017, reflects the applicant tested positive for THC 558 during an Inspection Random (IR) urinalysis testing conducted on 7 February 2017. Electronic copy of the DD Form 2624, dated 28 March 2017, reflects the applicant tested positive for THC 51 during an Inspection Random (IR) urinalysis testing conducted on 3 March 2017. FG Article 15, dated 2 June 2017, reflects the applicant the failed to go at the prescribed time to the appointed place of duty on six separate occasions and wrongfully used marijuana between on or about 7 January 2017 and on or about 3 March 2017. The punishment consisted of reduction to private/E-1; forfeiture of $799 pay; and extra duty and restriction for 45 days. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: A Report of Mental Status Evaluation (MSE), dated 26 July 2017, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with adjustment disorder with mixed anxiety and depressed mood. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214 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), dated 25 September 2019, 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 14-12c (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, paragraph 12c (2), misconduct (drug abuse). 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 contends the narrative reason for the discharge is interfering with gainful employment as a civilian. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c (2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be listed in tables 2-2 or 2-2 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Further, the ADRB does not grant relief to help an applicant gain employment or enhance employment opportunities. The applicant contends the applicant had a personal crisis and requested help from command but was ignored. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant smoked marijuana once to cope with the crisis. The applicant had many legitimate avenues through which to obtain assistance or relief, and there is no evidence in the record that the applicant ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant was called a racial slur by a noncommissioned officer and was racially discriminated against by an executive officer. There is no evidence in the AMHRR the applicant sought assistance or reported the discrimination. 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: Chronic Adjustment DO) Adjustment DO; Adjustment DO with mixed anxiety and depressed mood; Adjustment DO with mixed disturbance of emotions and conduct are subsumed under the CAD diagnosis); Racism. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found the experience of being called a racial slur occurred in the military. VA service connection for Chronic Adjustment DO establishes it was present during military service. (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 both a mitigating BH condition, Chronic Adjustment DO (CAD) and a mitigating experience, racism. As there is an association between CAD, racism, and use of illicit drugs to self-medicate painful emotions, there is a nexus between his diagnosis and experience and his two positive urinalyses for THC. Medical record review indicates that the applicant's mood and attitude profoundly worsened after being called the racial slur. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's Chronic Adjustment DO (CAD), and a mitigating experience of racism outweigh the applicant's wrongful use of marijuana. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge is interfering with gainful employment as a civilian. The board considered this contention but does not grant relief to gain employment or enhance employment opportunities. However, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN based on the applicant's mitigating BH condition, Chronic Adjustment DO (CAD), experience of racism and length and quality of service outweighed the applicant's misconduct - Drug Abuse basis for separation. (2) The applicant was called a racial slur by a noncommissioned officer and was racially discriminated against by an executive officer. The Board considered this contention and the totality of the applicant's service record during proceedings, but ultimately did not address the contention due to an upgrade being granted as referenced in paragraph 9b (1) above. (3) The applicant smoked marijuana once to cope with a crisis. The Board considered this contention and the totality of the applicant's service record during proceedings, but ultimately did not address the contention due to an upgrade being granted as referenced in paragraph 9b (1) above. c. The Board determined that the characterization was inequitable based on the applicant's in-service mitigating factors of length and quality of service and concurred with the conclusion of the medical advising official that the applicant's BH Conditions of Chronic Adjustment DO (CAD), and experience of racism mitigate the applicant's misconduct - wrongful use of marijuana. 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. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's in-service mitigating factors of length and quality of service and concurred with the conclusion of the medical advising official that the applicant's BH conditions of Chronic Adjustment Disorder (CAD) and a mitigating experience, racism mitigated the applicant's misconduct - wrongful use of marijuana because there is a nexus between applicant's diagnosis, experience and his two positive urinalyses for THC. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: 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 AR20210005749 1