1. Applicant's Name: a. Application Date: 6 October 2020 b. Date Received: 13 October 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. b. The applicant states, in effect when they deployed to Iraq in 2003, they were assigned to a mission as a gunner, they were in small arms fire and killed one of the attackers. Another incident happened when their convoy was hit by two improvised explosive devices and small arms fire, one of the soldiers who did not have experience as a gunner died in their arms, they tried to do CPR, but it was too late, they felt responsible for their death. During that deployment they witnessed a friend die in their arms and had nine confirmed kills that affected them a lot. They were confused and sad and started to have problems sleeping. When they returned from deployment their sleeping problems were worse, they were having nightmares and the lack of rest caused them to feel fatigued, depressed and caused an emotional burden. c. Thinking of the people they killed and all their important friends they lost in the war and not having the ability to save their lives caused them to start using drugs to get away from the nightmares and bad feelings. When their urinalysis came back positive, the commanders removed them from the army, not knowing they suffered from PTSD and TBI. They were sent to the hospital on Fort Hood as a psychiatric patient for weeks. They are very proud to have served in the army and received many recognitions for their capabilities in combat. It has been 13 years since they have changed and the Lord has been in their life since, they are a responsible and positive person. They want the opportunity to improve more in every aspect of their life, with the intention to apply for a federal job so that they can serve their nation and have job stability. For those reasons they are requesting a characterization of service change to honorable and hope that the problems they had during that time, their effort to do a good job in the army, their commitment to the nation by giving their life to war, and the changes they have made to improve are considered when making the decision. The decision would change their life in positive ways, with the opportunity to clean up the bad impression they have due to a mistake. d. Board Type and Decision: In a records review conducted on 5 January 2024, and by a 5-0 vote, the Board determined the discharge is inequitable. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and change 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. No change to the reentry code. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200 / JKK / RE-4 / General (Under Honorable Conditions). b. Date of Discharge: 14 May 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: Date NIF (2) Basis for Separation: Wrongful use of cocaine (3) Recommended Characterization: General under Honorable Conditions (4) Legal Consultation Date: 18 April 2007 (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 26 April 2007 / General (under honorable conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 February 2005 / 3 years b. Age at Enlistment / Education / GT Score: 27 / High School / 97 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92S10 Shower, Laundry and Clothing Repair Specialist / 5 years, 4 months, 5 days. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: none / Iraq (20041219 - 20051219), Iraq (20030117 - 20040118). f. Awards and Decorations: AGCM, NDSM, GWTEM, GWTSM, ICM, ASR, OSR g. Performance Ratings: October 2005 - September 2006 / Successful h. Disciplinary Action(s) / Evidentiary Record: (1) An Enlistment/Reenlistment Document signed 23 February 2005 provides the applicant reenlisted for 3 years at the rank of Specialist (E-4). (2) A Urinalysis nanogram (NG) levels positives document dated 16 January 2007, provides the applicant (identified by their SSN) tested positive for cocaine on 27 November 2006 and on 12 December 2006. (3) A Developmental Counseling Form dated 17 January 2007 provides the applicant was counseled to inform them they tested positive for cocaine from a companywide urinalysis that was conducted. They were pending a Filed Grade Article 15, and separation from the army under Chapter 14. (4) A Report of Mental Status Evaluation document, dated 23 August 2018, provides that the applicant received a separation mental health evaluation and was psychiatrically cleared for Chapter 14 processing. (5) A Record of Proceedings UCMJ document, dated 14 February 2007 provides the applicant received a NJP for violating Article 112a of the UCMJ. They wrongfully used cocaine between 27 October - 27 November 2006. Punishment consisted of reduction In rank to E-4 (specialist), forfeiture of pay; $989 for two months and extra duty for 45 days. (6) On an unknown date the applicant's immediate commander notified them of their intent to separate them under the provisions of AR 635-200, Chapter 14-12c (Commission of a serious offense) for wrongfully using cocaine. They recommended the applicant receive a General (under honorable conditions) characterization of service. The applicant acknowledged the commander's notification and basis for separation, and their available rights. The applicant completed their election of rights and consulted with counsel on 4 April 2006. (7) A memorandum, 4TH Sustainment Brigade, Fort Hood, Texas dated 26 April 2007 subject: Separation under AR 635-200, Chapter 14, Section III, Paragraph 14-12c, Commission of a Serious Offense, provides the appropriate authority approved the administrative separation with a General (under honorable conditions) characterization of service. (8) A DD Form 214 shows on 14 May 2007 the applicant was discharged accordingly, for misconduct (drug abuse) they completed a total active service of 5 years, 4 months, and 5 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: A Department of Veterans Affairs summary of benefits letter, provides the applicant has post-traumatic stress disorder (PTSD) with a mild traumatic brain injury (TBI). (2) AMHRR Listed: none 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), A Department of Veterans Affairs summary of benefits letter; provides the applicant is 80 percent service connected, and a three page notarized self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has changed their life; they are now a positive person. 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 provides the authorized types of characterization of service or description of separation. (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) An Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (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. 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. A soldier subject to this discharge under this regulation will be considered and processed for discharge even though he/she has filed an appeal or has stated his/her intention to do so. Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial (5) Chapter 15 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 600-85 (Army Substance Abuse Program (ASAP)) governs the program and identifies Army policy on alcohol and other drug abuse, and responsibilities. The ASAP is a command program that emphasizes readiness and personal responsibility. (1) 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 and the standards of performance, discipline, and readiness necessary to accomplish the Army's missions. (2) Individuals who do not self-refer for treatment and are subsequently identified as positive for controlled substances for which they do not have a valid prescription may be considered in violation of the UCMJ for drug misuse/abuse. f. 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, misconduct (drug abuse). g. 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. a. The applicant requests an upgrade to honorable. The applicant's DD Form 214 provides that the applicant received a General (under honorable conditions) characterization of service, a under other than honorable conditions (UOTCH) discharge is normally appropriate for a soldier discharged under CH 14 for misconduct (drug abuse). b. Based on the available evidence the applicant enlisted in the army 10 January 2002 at the age of 27, they completed two, twelve-month tours in Iraq between 17 January 2003 - 19 December 2005. November 2006 a companywide urinalysis was administered, the applicant tested positive for cocaine and received a non-judicial punishment and was processed for administrative separation. c. A review of the record provides the administrative process was properly followed according to regulation, the applicant was notified of the intent to separate them, they acknowledged they understood the basis for separation under the provisions AR 635-200, CH 14-12c. They elected to consult with counsel and elected to not submit a statement on their behalf. They received the required mental health separation examination that psychologically cleared them for administrative separation. The AMHRR is void of the required medical exam for administrative separation. d. Chapter 14 establishes policy and prescribes procedures for members being separated 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. 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: 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 DoD and VA medical records and found mitigating BH diagnoses on the applicant. It is the opinion of the Agency BH Advisor that the applicant has two mitigating BH conditions, PTSD and TBI. (2) Did the condition exist or experience occur during military service? Yes (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Based on the available information, the Agency BH Advisor opines the applicant has two mitigating BH conditions, PTSD and TBI. As both of these conditions are associated with the use of illicit drugs to self-medicate painful emotional symptoms, there is a nexus between these two conditions and his wrongful use of cocaine. (4) Does the condition or experience outweigh the discharge? Yes. b. Response to Contention(s): (1) The applicant contends they were discharged without the command knowing they suffered from PTSD and TBI. They are currently diagnosed with PTSD and TBI with The Department of Veteran Affairs. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's use of illegal drugs charges. c. The Board determined the discharge is inequitable. 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. No change to the reentry code. d. Rationale for Decision: 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, Combat) and concurred with the medical advising official that the applicant's PTSD and TBI mitigate the applicant's wrongful use of cocaine. Based on the 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 applicant's characterization of service to Honorable because the applicant's PTSD and TBI mitigated the applicant's misconduct of cocaine use. Thus, the prior characterization is no longer appropriate. (3) 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. (4) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No change e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210007081 1