1. Applicant's Name: a. Application Date: 4 August 2020 b. Date Received: 11 August 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. The applicant did not present any issues of propriety or equity for the Board's consideration, but requests an upgrade in accordance with U.S.C. 1553, Carson Memorandum of 2016, and Kurta Memorandum of 2017. b. Board Type and Decision: In a records review conducted on 04 August 2023, and by a 5-0 vote, the board determined the discharge is inequitable based on the applicant's length of service and PTSD outweighing the basis for separation (Misconduct - positive urinalysis for THC, wrongful possession of alcohol, leaving FOB Liberty without authority and violation of General Order Number One). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. 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: 18 January 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 October 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for THC during a urinalysis test dated 24 July 2007, and the applicant violated Article 86, UCMJ, by leaving FOB Liberty on 15 September 2007 without authority. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 28 November 2007 (5) Administrative Separation Board: The applicant waived consideration of the case by an administrative separation board contingent upon receiving a characterization of service no less favorable then a general under honorable conditions discharge. (6) Separation Decision Date / Characterization: 27 December 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 August 2006 / 6 years (ARNG) b. Age at Enlistment / Education / GT Score: 31 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-4 / 63B10, Wheeled Vehicle Mechanic / 9 years, d. Prior Service / Characterizations: RA, 10 May 1995 - 27 September 19996 / HD USAR, 28 September 1996 - 18 March 2003 / HD ARNG, 30 August 2006 - 18 January 2008 / GD e. Overseas Service / Combat Service: The applicant was ordered to active duty in support of Iraqi Freedom / dates: NIF f. Awards and Decorations: NDSM-2, GWOTSM, ASR, AFRM-M, ARCOM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 4 January 2008, reflects the applicant violated a lawful general order on or about 14 December 2007, by wrongfully possessing alcohol. The punishment consisted of forfeiture of $481.00; restriction and extra duty for 14 days, suspended, to be automatically remitted if not vacated before 2 July 2008. A Report of Behavioral Health Evaluation (BHE), dated 3 December 2007, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant did a self-referral into the Army Substance Abuse Program on 22 August 2007. The applicant received two Developmental Counseling Forms for misconduct and unauthorized absence from the appointed place of duty. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides, in part, a VA Rating Decision, dated 23 November 2015, which reflects the applicant has service-connected disability for post- traumatic stress disorder (claimed as PTSD, depression, and anxiety) and was granted an evaluation of 70 percent effective 1 August 2014. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Letters from the Department of Veterans Affairs-4, Previous ADRB RR, VA Rating Decision, News Article, DD Form 214, Orders, AAM Certificate, Developmental Counseling Form-2, Rights Warning Procedure/Waiver Certificate, Record of Proceedings Under Article 15, UCMJ, VA Admissions and Discharges 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 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, 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. (7) 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 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 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 applicant's 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. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant did not present any issues of propriety or equity for the Board's consideration, but requests an upgrade in accordance with U.S.C. 1553, Carson Memorandum of 2016, and Kurta Memorandum of 2017. The board will consider the applicants service accomplishments and the quality of the applicant's service according to the DODI 1332.28. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, "AR 635-200, PARA 14-12c (2)." The discharge packet confirms the separation authority approved the discharge because of Misconduct (Serious Offense). Soldiers discharged due to Misconduct (Serious Offense), will be processed under the provisions AR 635-200, Para 14-12c. Based on the AMHRR, it appears someone in the discharge process erroneously entered on the applicant's DD Form 214, block 26, Separation Code as "JKK." The discharge packet confirms the separation authority approved the discharge because of Misconduct (Serious Offense). Soldiers discharged due to Misconduct (Serious Offense), will be processed under the provisions AR 635-200, PARA 14-12c, and will be assigned a Separation Code of "JKQ," per Army Regulation 635-5-1. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 28, Narrative Reason for Separation as "Misconduct (Drug Abuse)." The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c. Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason for Separation as Misconduct (Serious Offense). 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). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found the VA service connection indicates that the diagnosis of PTSD began or occurred during military 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 a mitigating BH condition, PTSD. As there is an association between PTSD, self-medication with alcohol/illicit drugs, avoidant behaviors, and difficulty with authority. There is a nexus between the applicant's diagnosis of PTSD, wrongful possession of alcohol, THC positive urinalysis, leaving of FOB Liberty without authority, and violation of General Order Number One by possessing alcohol. (4) Does the condition or experience outweigh the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH condition, PTSD. As PTSD is associated with use of illicit drugs to self-medicate symptoms, because there is a nexus between applicant's diagnosis of PTSD and a positive urine drug screen for THC. b. Response to Contention(s): The applicant requests an upgrade to honorable. The Board considered this contention and voted to upgrade the characterization of service to Honorable and change the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN because there is a nexus between the diagnosis of PTSD that mitigated the applicant's misconduct. Thus, relief is warranted. The board voted to maintain the current RE-code as the current code is consistent with the procedural and substantive requirements of the regulation and the applicant's PTSD though mitigating, is service limiting. c. The Board determined the discharge is inequitable based on the applicant's length of service and BH mitigation. However, the applicant may request a personal appearance hearing to address further issues before the Board if required. 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 to change the applicant's characterization of service to Honorable because of the applicant's length of service and service-connected PTSD, which mitigated the applicant's misconduct (positive urinalysis for THC, wrongful possession of alcohol, leaving FOB Liberty without authority and violation of General Order Number One). There is a nexus between the applicant's diagnosis of PTSD and a positive urine drug screen for THC. 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, and 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 / Separation Order: 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 AR20210009362 1