1. Applicant's Name: a. Application Date: 12 September 2020 b. Date Received: 15 September 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable, a narrative reason change, and a change to his reentry eligibility (RE) code from 4 to 1. The applicant seeks relief contending, in effect, that he was a go getter with high hopes of a great military career. He passed up great opportunities that would have benefited him today, sacrificed the comforts he once knew and joined the Army against his family's wishes, which was not an easy thing for him to do. He was medically cleared to serve and he finished 4 months of OSUT fine with no restarts. He was injured during a field exercise while on active duty. They gave him the wrong medical evaluation and then refused to fix or treat him after flooding him with prescription narcotics for over a year. He was harassed, discriminated against and humiliated on Rear Detachment and he could not even turn to the legal team on base for help. In desperation, he tried to manage his own pain after he was refused help. In an act of self-preservation, he was chaptered out with bad marks on his DD Form 214 even though other Soldiers stayed in after being caught using drugs recreationally. He believes this was unfair, wrong, and a disgusting misuse of power. He now asks that the board do the right thing and upgrade his discharge. In a records review conducted on 26 January 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, post-service accomplishments, and one-time drug use based on evidence. 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. 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: 10 May 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 March 2011 (2) Basis for Separation: The applicant was informed of the following reason: for between 6 December 2010 and 6 January 2011 he wrongfully used marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 March 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: On 29 April 2011, the separation authority having reviewed the separation action concerning the applicant, determined the applicant's medical conditions was not the direct or substantial contributing cause of the conduct that led to the recommendation for his administrative separation. Other circumstances of the applicant's case did not warrant disability processing instead of further processing him for administrative separation. Therefore, it was directed by the separation authority that the applicant be separated under the provisions of AR 635-200, Chapter 14-12c(2), commission of a serious offense with a characterization of service as general (under honorable conditions). The rehabilitative transfer requirement was waived IAW AR 635-200, paragraph 1-16d(2). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 June 2009 / 2 years, 16 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 1 year, 11 months, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement, dated 18 August 2010. Medical Evaluation Board Proceedings, dated 23 November 2010, indicate the applicant was diagnosed with Pectus excavatum causing chest pain and dyspnea with exertion; medically unacceptable IAW AR 40-501, Chapter 3-41e(1); Asthma, mild, controlled with medications, medically acceptable; and a history of low back pain as a result of injury in training exercise, medically acceptable. The board recommended that the applicant be referred to a Physical Evaluation Board (PEB). Electronic copy of the DD Form 2624, reflects the applicant tested positive for THC during an Inspection Unit (IU) urinalysis testing conducted on 6 January 2011. FG Article 15, dated 25 February 2011, for the wrongful use of marijuana. The punishment consisted of reduction to E-1, forfeiture of $733.00 pay per month for two months (one month suspended), and extra duty and restriction for 45 days. Request for Independent Physician Review (IPR), dated 29 March 2011 and 15 April 2011. Letter from W.A.M., M.D., reference the applicant and his issue with his pectus excavatum. It was discussed with the applicant about the general principle repair, particularly the general consensus that related to his age and muscular development. It was recommended to the applicant that he continue his training unabated as he felt there was no particular endangerment to his health. Medical Treatment documents from Vanderbilt University Medical Center. PEB Referral Transmittal Documents. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation, dated 28 February 2011, indicates the applicant was diagnosed with an Axis I for an Adjustment Disorder. It was noted that the applicant was screened for PTSD and mTBI IAW OTSG/MEDCOM policy Memo 10-040. Results were positive. The applicant was not psychiatrically cleared for Chapter 14-12c consideration at that time. The applicant was to be evaluated by licensed provider to rule out any mental health diagnosis. It was also noted that the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; exhibits 1-7; chronological record of cared of medical cared, dated 20 October 2009; individual sick slop, dated 19 October 2010; travel authorization, dated 30 March 2010; physical profile (pectus excavatum); unofficial transcript from Capella University; VA Disability Rating letter, indicating the applicant has been awarded 70 percent combined disability; and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contents that since his discharge he was scheduled to graduate with a Bachelor's degree in Criminal Justice in June 2021, in 2012 he started his own videography business shooting wedding's to help pay his bills. He has worked under Homeland Security achieving the NWDTP certification as well as the additional training they required. He has taken multiple courses and certifications including getting his guard card, his baton permit, Chemical Agents Certificate, CPR and first aid certificate through the American Red Cross, process sever certificate, power of arrest course certificate, pre-licensing bail education course certificate, and plenty of others. He's contends at the time of his applicant that he was working as a fugitive recovery agent and investigator. The person who can do all this in spite of everything is a hard-working reliable person, and that's exactly who he is. 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 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 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 memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (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: 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. 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, a narrative reason change, and a change to his reentry eligibility (RE) code from 4 to 1. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record indicates separation was initiated against the applicant for between 6 December 2010 and 6 January 2011 he wrongfully used marijuana. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635- 200 with an under other than 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 Documents, governs 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 as listed in tables 2-2 or 2- 3 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. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c(2), is "JKK." The applicant seeks relief contending that he was a go getter with high hopes of a great military career. He passed up great opportunities that would have benefited him today, sacrificed the comforts he once knew and joined the Army against his family's wishes, which was not an easy thing for him to do. He was medically cleared to serve and he finished 4 months of OSUT fine with no restarts. He was injured during a field exercise while on active duty. They gave him the wrong medical evaluation, and then refused to fix or treat him after flooding him with prescription narcotics for over a year. The applicant contention was noted; the Report of Behavioral Health Evaluation, dated 28 February 2011, indicates the applicant was diagnosed with an Axis I for an Adjustment Disorder. It was noted that the applicant was screened for PTSD and mTBI IAW OTSG/MEDCOM policy Memo 10-040. Results were positive. The applicant was not psychiatrically cleared for Chapter 14-12c consideration at that time. The applicant was to be evaluated by licensed provider to rule out any mental health diagnosis. It was also noted that the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command. The applicant contends he was harassed, discriminated against and humiliated on Rear D and he could not even turn to the legal team on base for help. It should be noted; he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was harassed, discriminated against and humiliated. The applicant contends in desperation, he tried to manage his own pain, after he was refused help, in an act of self-preservation and he was chaptered out with bad marks on his DD Form 214 of it. Even though other Soldiers stayed in after being caught using drugs recreationally. He believes this was unfair, wrong, and a disgusting misuse of power. He now asks that the board do the right thing and upgrade his discharge. The applicant's contention was noted; however, the applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career marred the quality of his service. He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 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. While on active duty, the applicant was diagnosed with Major Depressive Disorder (MDD); Adjustment DO with depressed mood; Adjustment DO with disturbance of emotions and conduct; Adjustment DO; Opioid Abuse/Dependence; Pain Disorder. (2) Did the condition exist or experience occur during military service? Yes. While on active duty, the applicant was diagnosed with Major Depressive Disorder (MDD); Adjustment DO with depressed mood; Adjustment DO with disturbance of emotions and conduct; Adjustment DO; Opioid Abuse/Dependence; Pain Disorder.; Phase of Life Circumstance Problem. (3) Does the condition or experience actually excuse or mitigate the discharge? No. Based upon the Board's Medical Advisor reviewing the applicant's misconduct, details surrounding the events, the BH diagnoses and their status at the time of the misconduct, it is unlikely that the applicant's in-service diagnoses of Adjustment DO with depressed mood; Adjustment DO with disturbance of emotions; Adjustment DO with disturbance of emotions and conduct; Adjustment DO; Major Depressive Disorder, single episode; Opioid Abuse; Opioid Dependence in remission; Pain Disorder associated with psychological factors; Phase of Life Circumstance Problem were contributory given that these conditions in no way affect one's ability to distinguish right from wrong and act in accordance with the right. Consequently, while Liberal Consideration was applied, the applicant's misconduct is not mitigated. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the applicants misconduct is not mitigated based on OBH conditions. However, the Board determined that the applicant's wrongful use of marijuana outweighed the applicant's current characterization of service/OBHI for the reasons listed in (3) above. b. Response to Contentions: (1) The applicant seeks relief contending being a go getter with high hopes of a great military career. The applicant passed up great opportunities that would have benefited him today, sacrificed the comforts and joined the Army against the applicant's family's wishes, which was not an easy to do. The was medically cleared to serve and finished 4 months of OSUT fine with no restarts. The applicant was injured during a field exercise while on active duty. They gave the applicant the wrong medical evaluation, and then refused to fix or treat him after flooding him with prescription narcotics for over a year. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the applicant's length of service, post service accomplishments, and one-time drug use based on evidence. (2) The applicant contends he was harassed, discriminated against and humiliated on Rear D and he could not even turn to the legal team on base for help. The Board determined there is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was harassed, discriminated against and humiliated. (3) The applicant contends in desperation, he tried to manage his own pain, after he was refused help, in an act of self-preservation and he was chaptered out with bad marks on his DD Form 214 of it. Even though other Soldiers stayed in after being caught using drugs recreationally. He believes this was unfair, wrong, and a disgusting misuse of power. The Board considered this contention during the proceedings. c. The Board determined the discharge is inequitable based on the applicant's length of service, post-service accomplishments, and one-time drug use based on evidence. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because of the applicant's length of service, post-service accomplishments, and one-time drug use based on evidence. 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 Board voted to change the RE code to RE-3. 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: 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 AR20210005893 1