1. Applicant's Name: a. Application Date: 6 July 2020 b. Date Received: 22 August 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant through counsel seeks relief contending, in effect, potential procedural irregularities. At the time of the misconduct that led to the applicant's discharge, and at the time of the discharge, the applicant suffered from a mental health condition and severe post- traumatic stress disorder (PTSD) that mitigates the conditions of the discharge and satisfies the four questions presented in the Kurta memorandum. On 25 September 2011, the applicant was the victim of attempted murder. In the encounter, the applicant was shot in both legs. During the following year, the applicant 's mental health deteriorated, and military performance declined. This decline culminated on 1 December 2012, when during a unit battle assembly drug urinalysis, the applicant provided a urine sample that ultimately tested positive for illegal drugs. b. Board Type and Decision: In a records review conducted on 25 August 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's Post-Traumatic Stress Disorder outweighed the applicant's abuse of illegal drugs. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. 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 Abuse of Illegal Drugs / AR 135-178, Chapter 12-1d / NA / NA / Under Other Than Honorable Conditions b. Date of Discharge: 3 May 2015 c. Separation Facts: The applicant's Army Military Human Resource Record (AMHRR) is void of the case separation file. However, the applicant provided several documents which are described below in 3c(1) through (6). (1) Date of Notification of Intent to Separate: 30 July 2013 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 1 December 2012, the applicant submitted a urine sample that was screened to determine possible use of illegal drugs. The results of that test indicated that the applicant abused illegal drugs, COC (Cocaine). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 March 2007 / 8 years b. Age at Enlistment / Education / GT Score: 17 (Parental/Guardian Consent for Enlistment in AHMRR) / Adult High School / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 21J10, General Construction Equipment Operator / 3 years, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NIF g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Evidence provided by the applicant through counsel. Paterson Police Department report, dated 25 September 2011, reflects the applicant was shot three times in the right and left legs at a park. St Joseph Healthcare System report, dated 25 September 2011, reflects the applicant was seen for a shot wound to the lower leg. Electronic Copy of DD Form 2624, dated 3 January 2013, reflects the applicant tested positive for COC 17598 (cocaine), during an Inspection Random (IR) urinalysis testing, conducted on 1 December 2012. Developmental Counseling Form, dated 21 May 2013, reflects the applicant tested positive for cocaine on 5 January 2012. The counseling is not signed by the applicant or the commander. Orders 15-118-00016, dated 28 April 2015, reflect the applicant was reduced in grade from SPC to PV1 under the provisions of AR 600-8-19, para 10-15, effective 28 April 2015; and discharged from the United States Army Reserve under the provisions of AR 135-178 with an Under Other Than Honorable Conditions discharge, effective 3 May 2015. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Mental Health Evaluation by Dr. J__ C. N__, dated 20 April 2020, that reflects Dr. N__ states "It is my professional opinion within reasonable psychological certainty that the attempted murder of [applicant] on or about 25 September 2011 resulted in posttraumatic symptomology with associated behavioral changes that contributed to the misconduct resulting in [applicant's] discharge from the military." Diagnostic impressions are posttraumatic stress disorder, chronic, persistent depressive disorder, generalized anxiety disorder, other personal history of psychological trauma, other problem related to employment, and GAF = 65. Analyst notes the applicant's AMHRR is void of a mental status evaluation. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed enclosures 1 through 6 (includes partial case separation packet, medical records, mental health evaluation, self-authored statement). 6. POST SERVICE ACCOMPLISHMENTS: Cleans the community, Certified Emergency Medical Technician, volunteered for over 6 years at the Saddle Brook Ambulance Volunteer Corps, is an Operations Director, engaged, and has two beautiful children. The applicant also makes it a priority to see a mental health professional. 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 135-178 prescribes the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization 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) Paragraph 2-9b, prescribes, if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. (3) Paragraph 2-9c, prescribes the service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons, and under other circumstances. (4) Chapter 11 (previously Chapter 12), 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, and convictions by civil authorities. 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 11-1d, prescribes illegal drug use is serious misconduct. Discharge action normally will be based upon commission of a serious offense. However, relevant facts may mitigate the nature of the offense. Therefore, a single drug offense may be combined with one or more disciplinary infractions or incidents or other misconduct and processed for discharge. (6) Paragraph 11-8, states an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant through counsel contends, in effect, at the time of the misconduct that led to the applicant's discharge, and at the time of the discharge, the applicant suffered from a mental health condition and severe PTSD that mitigates the conditions of the discharge and satisfies the four questions presented in the Kurta memorandum. The applicant provided a Mental Health Evaluation, dated 20 April 2020, that reflects Dr. N__ states "It is my professional opinion within reasonable psychological certainty that the attempted murder of [applicant] on or about 25 September 2011 resulted in posttraumatic symptomology with associated behavioral changes that contributed to the misconduct resulting in [applicant's] discharge from the military." Diagnostic impressions are posttraumatic stress disorder, chronic, persistent depressive disorder, generalized anxiety disorder, other personal history of psychological trauma, other problem related to employment, and GAF = 65. Analyst notes the applicant's AMHRR is void of a mental status evaluation. The applicant through counsel contends, in effect, the applicant 's mental health deteriorated after being the victim of attempted murder on 25 September 2011. The applicant should have been referred for a mental health evaluation instead of being recommended for separation due to unsatisfactory performance for failing to attend battle assemblies in 2012. Counsel states deterioration of the applicant's mental health led the applicant to miss USAR unit battle assemblies and to self-medicate with illegal drugs. There is no evidence that the command attempted to offer appropriate rehabilitative measures to the applicant. Paterson Police Department report, dated 25 September 2011, reflects the applicant was shot three times in the right and left legs. St Joseph Healthcare System report, dated 25 September 2011, reflects the applicant was seen for a shot wound to the lower leg. The applicant through counsel provided the initial notification of separation proceedings under AR 135-178, chapter 13, paragraph 13-1, Unsatisfactory Participation (Applicant), dated 10 January 2013, that reflects the commander was initially going to initiate separation for failing to attend battle assemblies on 4-5 August, 8-9 September, and 13-14 October 2012. Counsel provides, AR 135-178, paragraph 2-4 (Counseling and Rehabilitation), states commanders must make reasonable efforts to identify Soldiers who are likely candidates for early separation and to improve their chances for retention through counseling, retraining, and rehabilitation before starting separation action. These actions are prerequisite for initiating action to separate a Soldier for unsatisfactory performance. The National Records Center and the applicant's AMHRR contains incomplete records. Analyst notes the applicant was discharged under AR 135-178, chapter 12-1d, Use of Illegal Drugs. The applicant's AMHRR is void of the election of rights for the chapter 12-1. The applicant through counsel contends, in effect, there is no evidence in official government records that the applicant knowingly waived rights to an administrative separation board. The applicant never waived rights to a board on the notification of separation proceedings memorandum, but initialed the sections acknowledging assistance of counsel and requesting copies of documents that would be used to support the basis of separation. This indicated that, at some point, the applicant intended to present a defense. The remainder of the document was left blank, probably indicating that the applicant did not have a full understanding of the nature of the document. The applicant maintains to have never spoke with counsel, but simply initialed the block. This is borne out by the fact that the applicant did not complete the election of rights as competent counsel would not have allowed a client to submit an incomplete election of rights. Furthermore, the applicant did not sign the election of rights which is prima facia evidence that the applicant did not knowingly waive rights to an administrative separation board. Given that the applicant was suffering from PTSD, it is reasonable to assume that the applicant was mentally incapable of knowingly and intelligently waiving rights to an administrative hearing. Counsel provides, AR 135-178, paragraph 2-9c(3) states, no Soldier will be discharged in accordance with this regulation, with service characterized as under other than honorable conditions, unless they are afforded the right to present their case before an administrative separation board. The Soldier will be afforded the advice and assistance of counsel. Such discharge must be supported by approved board findings, and an approved board recommendation for discharge under other than honorable conditions. And paragraph 2-9c(4) states, as an exception to paragraph 2-9c(3), a discharge with service characterized as under other than honorable conditions may be issued without board action if the Soldier waives their right to board action. Analyst notes records provided by the applicant contains an incomplete election of rights for the chapter 13 notification and it is not signed by the applicant or counsel. The applicant's AMHRR is void of the election of rights for a chapter 12-1d, Use of Illegal Drugs. The applicant through counsel contends, in effect, the applicant's service up to the time of the attempted murder was exemplary. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends, in effect, cleans the community, has become a certified Emergency Medical Technician, volunteered for over 6 years at the Saddle Brook Ambulance Volunteer Corps, is an Operations Director, engaged, and has two beautiful children. The applicant also makes it a priority to see a mental health professional. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. 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 which were void of a diagnosis. The applicant submitted a civilian report diagnosing Post-Traumatic Stress Disorder (PTSD), Generalized Anxiety Disorder (GAD), and Persistent Depressive Disorder based on self-report. (2) Did the condition exist or experience occur during military service? Yes. Per applicant assertion, Post-Traumatic Stress Disorder (PTSD). (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and substance use, the basis is mitigated. (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 applicant's Post Traumatic Stress Disorder outweighed the applicant's drug abuse basis of separation. b. Response to Contention(s): (1) The applicant contends at the time of the misconduct that led to the applicant's discharge, and at the time of the discharge, the applicant suffered from a mental health condition and severe PTSD that mitigates the conditions of the discharge and satisfies the four questions presented in the Kurta memorandum. The Board liberally considered this contention and determined that the applicant's Post Traumatic Stress Disorder outweighed the applicant's drug abuse basis of separation. Therefore, a discharge upgrade is warranted. (2) The applicant contends the applicant 's mental health deteriorated after being the victim of attempted murder on 25 September 2011. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD outweighing the applicant's drug abuse basis for separation. (3) The applicant contends the applicant's service up to the time of the attempted murder was exemplary. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD outweighing the applicant's drug abuse basis for separation. (4) The applicant contends the applicant cleans the community, has become a certified Emergency Medical Technician, volunteered for over 6 years at the Saddle Brook Ambulance Volunteer Corps, is an Operations Director, engaged, and has two beautiful children. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD outweighing the applicant's drug abuse basis for separation. c. The Board determined that the characterization of service was inequitable based on the applicant's Post-Traumatic Stress Disorder outweighed the applicant's abuse of illegal drugs. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Post-Traumatic Stress Disorder outweighed the applicant's misconduct of cocaine abuse. Thus, the prior characterization is no longer appropriate. (2) As there were no Reasons/SPD Codes/RE-codes listed on the applicant's discharge paperwork, due to being in the Army Reserves, no upgrade actions are required for these items. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable 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 AR20210009326 1