1. Applicant’s Name: a. Application Date: 15 July 2020 b. Date Received: 21 July 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 and a reentry eligibility code change. The applicant seeks relief contending, in effect, the discharge was caused by a mental health condition. The applicant was utilizing drugs as a way to cope with the applicant’s major depressive disorder. This self-medication and impaired judgment led to the issues the applicant faced during service. This condition was caused by military service and the applicant has since received a service connection disability for this condition from the Department of Veterans Affairs (VA). Instead of the applicant’s unit providing the applicant with the care and services the applicant needed, the unit contributed to the issue and separated the applicant from service. This condition deserves liberal consideration and the discharge should be upgraded. The misconduct was not premeditated or serious and the soldier could have been rehabilitated, but the unit leadership believed it was easier to get rid of the problem than to actually help the veteran get the care the applicant needed. An honorable discharge does not require flawless military service. The veteran was awarded a Good Conduct Medal, meaning the applicant’s first three years of service were completed honorably. The applicant further details the contentions in a self-authored statement submitted with the application. b. Board Type and Decision: In a records review conducted on 12 July 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 26 April 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 April 2018 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant did on 30 December 2017 and 27 January 2018, use marijuana The applicant on 14 December 2017, was derelict in the applicant’s duties, by wrongfully undermining dignity and respect by saying, “might just throat fuck your [spouse], make you mad nigga”, or words to that effect. The applicant did on 12 March 2018, failed to be at the appointed place of duty. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 5 April 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 April 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 July 2014 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25U10, Signal Support System Specialist / 3 years, 9 months, 13 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Equal Opportunity Complaint (EO) Form, dated 9 January 2018, reflects A. B., made an EO complaint of sexual harassment against the applicant and other Soldiers based on social media postings on Snapchat. Military Protective Order, dated 10 January 2018, reflects the applicant was issued an order not to make any contact with A. B, civilian spouse, effective until 1 June 2018, because of a formal sexual harassment report made against the applicant. Informal AR 15-6 Investigation Findings and Recommendations, dated 18 January 2018, reflects the investigating officer (IO) found the applicant engaged in sexual harassment within the meaning of Army Regulation 600-20, paragraph 7-4. On 14 December 2017, the applicant engaged in sexual harassment against Specialist (SPC) A. B. and A. B., the spouse of A. B., by participating in a video the applicant consciously chose to publish publicly on the applicant’s Snapchat story. The IO found the words “I might just throat fuck your [spouse], make you mad nigga,” established the applicant’s engagement of sexual harassment by deliberate unwelcome verbal comments of a sexual nature which specifically utilizes sexually explicit profanity and the threat to commit sexual assault against A. B., who was a victim of a prior sexual assault. The IO recommended UCMJ and administrative actions against the applicant. The applicant attempted to dismiss the allegations by falsifying statements under oath. Memorandum, subject: Completion of A. B. Formal Sexual Harassment Complaint, dated 23 January 2018, reflects the brigade Sexual Assault Response Coordinator (SARC), found the applicant, along with another Soldier, created a hostile work environment for SPC A. B., with threats being made to SPC A. B. and SPC A. B.’s spouse. The SARC recommended the applicant and the Soldier receive UCMJ action; the company receive training regarding social media; and the command be notified of both Soldiers making false statements under oath during the investigation. Field Grade Article 15, dated 27 February 2018, for being derelict in the performance of duties by willfully failing to uphold the Army Values by wrongfully undermining dignity and respect by saying, “I might just throat fuck your [spouse], make you mad nigga,” or words to that effect (14 December 2017). The punishment consisted of a reduction to E-1; forfeiture of $819 pay per month for two months; extra duty and restriction for 45 days; and an oral reprimand. The applicant appealed and submitted additional matters. The appeal was denied. Electronic Copy of DD Form 2624, dated 3 March 2018, reflects the applicant tested positive for THC 209 (marijuana), during a Probable Cause (PO) urinalysis testing, conducted on 27 January 2018. Report of Mental Status Evaluation, dated 6 March 2018, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mild Traumatic Brain Injury. Numerous Developmental Counseling Forms, for various acts of misconduct: failure to maintain standards, receiving a Headquarters Department of the Army Bar to Continued Service, failing to be at the appointed place of duty, suspension of favorable actions, and a warning against reprisal against those who file Sexual Harassment / Assault and Prevention (SHARP) reports. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Samaritan Medical Center medical documents, dated 10 April 2018, reflecting the applicant was prescribed medications for anxiety / agitation; depression; mood; spasms; and pain. (2) AMHRR Listed: Report of Medical Examination, dated 21 March 2018, the examining medical physician noted in the summary of defects and diagnoses and recommendations sections: Insomnia and patient currently on treatment with Behavioral Health; will follow up with Behavioral Health before separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; two DD Forms 293; self-authored statement; VA letter – GI Bill; and three third party character references. 6. POST SERVICE ACCOMPLISHMENTS: The applicant started a family and is employed as a direct support professional at the rehabilitation center. 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), 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, 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-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. 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 and a reentry eligibility code change. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends suffering from mental health issues which affected behavior and ultimately led to the discharge. The applicant provided medical documents reflecting the applicant was prescribed medications for anxiety / agitation; depression; mood; spasms; and pain. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service insomnia. The record shows the applicant underwent a mental status evaluation (MSE) on 21 March 2018, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. The applicant claims the offenses leading to the discharge were minor. The AMHRR indicates the applicant committed many discrediting offenses. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends the command should have sought rehabilitation instead of separation. Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the VA granted service-connection disability for the mental health condition. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the VA granted the applicant service-connection disability. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran’s benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends starting a family and being employed as a direct support professional at the rehabilitation center. The Army Discharge Review Board is authorized to consider post- service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. 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 third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good military service. 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: Adjustment DO with anxiety and depressed mood; Major Depressive Disorder (50% Service Connected). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found diagnosis of Adjustment DO was made during active service. VA service connection for MDD establishes it is connected to military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a behavioral health condition, MDD, which mitigates some of the misconduct. As there is an association between MDD and the use of illicit drugs to self-medicate symptoms, there is a nexus between the diagnosis of MDD and the wrongful use of THC on two occasions. MDD does not, however, mitigate sexual harassment or threatening to commit sexual assault against another person as MDD does not affect one’s ability to understand right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder and Major Depressive Disorder outweighed the applicant’s medically unmitigated offenses of sexual harassment or threatening to commit sexual assault against another person. b. Response to Contention(s): (1) The applicant contends suffering from mental health issues which affected behavior and ultimately led to the discharge. The Board liberally considered this contention and determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder and Major Depressive Disorder outweighed the applicant’s medically unmitigated offenses of sexual harassment or threatening to commit sexual assault against another person. Therefore, a discharge upgrade is not warranted. (2) The applicant contends the applicant was punished twice for the applicant’s misconduct. The Board considered this contention and determined that Army Regulation allows for a Soldier to receive both non-judicial punishment and administrative separation. Therefore, a discharge upgrade is not warranted. (3) The applicant contends the VA granted service-connection disability for the mental health condition. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Army when determining a member’s discharge characterization. After liberally considering all the evidence, including the VA determination, the Board found that the applicant had an unmitigated basis for separation. (4) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (5) The applicant contends starting a family and being employed as a direct support professional at the rehabilitation center. The Board considered the applicant’s post-service accomplishments but determined that these accomplishments do not mitigate the applicant’s misconduct due to the severity of the offenses of sexual harassment or threatening to commit sexual assault against another person. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence, the Board determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder and Major Depressive Disorder outweighed the applicant’s medically unmitigated offenses of sexual harassment or threatening to commit sexual assault against another person. The Board also considered the applicant's contentions regarding post-service accomplishments and perceived double punishment and found that the totality of the applicant's record does not warrant a discharge upgrade. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (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: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 AR20210007225 1