1. Applicant's Name: a. Application Date: 23 November 2020 and 10 March 2021 b. Date Received: 24 November 2020 and 11 March 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. (2) The applicant seeks reconsideration of their relief stating they are suffering with Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI). At the time of their incident, they were suffering and smoked K2 [Synthetic Marijuana] twice to better deal with their situation in Iraq. They have a disability rating of 100-percent service-connected through the Department of Veterans Affairs (VA) for PTSD. b. 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 based on the circumstances surrounding the discharge (TBI and PTSD diagnoses). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed 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 reentry code remains RE-3. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct, (Serious Offense) / Army Regulation 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 16 November 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 October 2010 (2) Basis for Separation: Used an illegal drug, spice between on or about 1 June 2010 and 15 September 2010 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 October 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 October 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 August 2007 / 6 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12B1O, Combat engineer / 5 years, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (14 January 2007 - 29 March 2008 and 14 December 2009 - 2 November 2010) f. Awards and Decorations: ICM-CS, AAM, AGCM, NDSM, GWTSM, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 28 September 2010, reflects the applicant received nonjudicial punishment for wrongfully using a substance, to wit; spice, with the intent of improper us to xxx an impaired state of mind, which is prohibited by Unites States Forces - Iraq General Order 1 and Army Regulation 600-85 (The Army Substance Abuse Program). This is in violation of Article 92 (Failure to Obey an Order), UCMJ. Their punishment consisted of a reduction in rank/grade to private/E-2, forfeiture of $811.00 pay for 2 months, and extra duty for 45 days. (2) A DD Form 2807-1 (Report of Medical History) dated 15 January 2014, the applicant marked "Yes" to multiple entries for "Have you ever had, or do you now have" to a listing of conditions, to include item 17d (Frequent trouble sleeping) and item 17g (Been evaluated or treated for a mental condition). Item 30 (Examiner's Summary and Elaboration of all Pertinent Data) reflects the examiner's comments "problem sleeping" and 'diagnosed with ADHD [Attention-Deficit/Hyperactivity Disorder], [applicant] taken Adderall in last 6 months." (3) A DD Form 2808 (Report of Medical Examination), dated 24 September 2010, reflects the applicant is qualified for service. Item 77 (Summary of Defects and Diagnoses) reflects the applicant has had evaluated blood pressure on occasion, need further evaluation. (4) A Medical Command Form 4038 (Report of Behavioral Health Evaluation) dated 25 September 2010, reflects the applicant has the mental capacity to understand and participate in the proceedings, was mentally responsible, and meets retention requirement. (a) The Findings reflect an Axis I diagnosis of Attention Deficit/Hyperactivity Disorder and Axis III states, Improvised Explosive Device blast, cleared during initial evaluation 20 September 2010. (b) The psychologist marked that treatment at this time is not deemed necessary, applicant is currently judged clinically psychologically stable, return to full duty and is psychiatrically cleared for any administrative action deemed appropriate by the commander to include Chapter Separation or UCMJ. (c) Additional comments reflect there is no mental health disorder that would warrant a Medical Evaluation Board. The applicant did not report and denied symptoms consistent with a diagnosis of PTSD. However, they reported a recent IED blast and has had symptoms consistent with mild TBI. It should be noted that this blast event occurred weeks after the alleged "spice event." The applicant does not beet diagnostic criteria for PTSD and has currently been cleared from mild TBI. (5) A memorandum, Echo Company, 3rd Battalion, 69th Armor Regiment, subject: Separation under Army Regulation 635-200, Chapter 14, Paragraph 12c, Commission of Serious Offense, pertaining to [Applicant], 8 October 2010, the applicant's company commander notified the applicant of their intent to separate them under the provisions of Army Regulation 635-200, Chapter 14-12c, Commission of a Serious Offense with a recommended characterization of service of general (under honorable conditions) for, using an illegal drug, spice, between on or about 1 June 2010 and 15 September 2010. On the same day the applicant acknowledged the basis for the separation and of the rights available to them. (6) On 8 October 2010, the applicant's company commander submitted a request to separate them prior to their expiration term of service. The company commander states for a description of rehabilitation attempts - N/A [not applicable]. (7) On 8 October 2010, the applicant completed their election of rights signing they had been advised by counsel of the basis for their separation and its effects and of the rights available to them. They elected to submit statements in their behalf; however, the statements are not in evidence for review. (8) A memorandum, Headquarters, 1-3 Advise and Assist Brigade, subject: Separation under Army Regulation 635-200, Chapter 14, Paragraph 12c, Commission of Serious Offense, pertaining to [Applicant], dated 19 October 2010, the separation authority approved the separation of the applicant and directed the applicant's service be characterized as General (Under Honorable Conditions). (9) The Enlisted Record Brief, dated 3 November 2010, reflects the applicant was advanced to the rank/grade of specialist/E-4 on 27 October 2007 and demoted to the rank/grade of private two/E-2 on 28 February 2010. (10) On 15 April 2014, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 5 years and 20 days of net active service this period. Item 18 (Remarks) shows - * Continuous Honorable Active Service - 2051027 - 20070811 * Member has Completed First Full Term of Service [Note - They completed 3 years, 3 months, and 6 days of their 6-year reenlistment contractual obligation] (11) On 20 May 2016, the Army Discharge Review Board denied the applicant's request for an upgrade of their general, under honorable conditions discharge to honorable. The Board denied the request upon finding the separation was both proper and equitable. Based on the information available for review at the time, the applicant's file and active-duty electronic medical records found no mitigating medical or behavioral health condition for the offense, use of an illegal drug, spice. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: * two DD Form 293 (Application for the Review of Discharge) * VA Letter, reflecting the applicant's summary of benefits with a combined service- connected evaluation of 100-percent * two VA Health Summaries, reflecting the applicant's diagnosis and treatment for PTSD, and self-reporting of TBI 6. POST SERVICE ACCOMPLISHMENTS: None submitted with application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, (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, Title 10, U.S. Code, Section 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 (DoD) 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; Title 10, U.S. Code, Section 1553; and DoD Directive 1332.41 and DoD Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 17 December 2009, provided the basic authority for the separation of enlisted personnel. (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) A Under Other Than Honorable Conditions Discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. (4) Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. 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. Paragraph 14-12c (Misconduct, Serious Offense), stated, commission of a serious military or civil 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 (Secretarial Plenary Authority), currently in effect, 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 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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 DoD Instructions 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. g. Title 38, U.S. Code, Sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by the agency. 8. SUMMARY OF FACT(S): a. The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. The applicant's AMHRR contains the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant received nonjudicial punishment for using an illegal drug, spice. A properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature which provides the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). The applicant received a general (under honorable conditions) characterization of service rather than a under other than honorable conditions which is normally considered appropriate. c. Chapter 14 establishes policy and prescribes procedures for separation members 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. d. The AMHRR does not provide documentation of a diagnosis of a PTSD or TBI during the applicant's term of service. e. Published DoD 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 the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD (100%SC); TBI (10% SC). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection establishes PTSD and TBI began or occurred during 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 two mitigating BH conditions, PTSD and TBI. As both of these conditions are associated with the use of illicit drugs to self-medicate symptoms, there is a nexus between these conditions and his wrongful use of Spice on two occasions. Applicant also has been diagnosed with ADHD which does not fall under the purview of liberal consideration as it is a condition which existed prior to service. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the PTSD and TBI condition outweighed the basis of separation, wrongful use of illegal drugs. b. Prior Decisions Cited: None c. Response to Contention(s): (1) The applicant contends they are suffering with Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI). The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD and TBI mitigating the applicant's drug abuse charges. (2) The applicant contends they at the time of their incident, they were suffering and smoked K2 [Synthetic Marijuana] twice to better deal with their situation in Iraq. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD and TBI mitigating the applicant's drug abuse charges. (3) The applicant contends they have a disability rating of 100-percent service- connected through the Department of Veterans Affairs (VA) for PTSD. (a) Neither the AMHRR nor the applicant provide evidence that shows PTSD. (b) Although the applicant submitted a copy of a VA disability rating, disabilities which occur or which worsen after a Soldier is separated are treated by and compensated for by the VA. Any claims or issues concerning treatment or compensation for service-connected disabilities should be addressed to that Agency. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. d. The Board determined the discharge is inequitable based on the circumstances surrounding the discharge (TBI and PTSD diagnoses). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed 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 reentry code remains RE-3. e. Rationale for Decision: The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation was inequitable. Final Vote: The Board, in a 5-0 vote, determined the BH diagnosis of PTSD and TBI outweighs and mitigates the applicant's misconduct of wrongful use of illegal drug, spice. (1) 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. 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: 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 AR20210008298 1