1. Applicant's Name: a. Application Date: 9 August 2020 b. Date Received: 19 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 seeks relief contending, in effect, the applicant self-medicated with marijuana to cope with the need for mental health treatment. The applicant has been diagnosed with post- traumatic stress disorder (PTSD), depression, and anxiety due to military service. The applicant mental health got worst due to things the applicant saw while serving in Iraq. The applicant was not being treated for the mental health issues and was discharged instead. The applicant is a married with children and is a homeowner. The applicant also has plans to attend college. b. Board Type and Decision: In a records review conducted on 30 June 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD outweighing the basis for separation - wrongful use of marijuana. 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. The Board determined the RE code was proper and equitable and voted not to change it. 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: 31 July 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 July 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana twice. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 14 July 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 21 July 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 May 2007 / 4 years b. Age at Enlistment / Education / GT Score: 24 / GED / 106 c. Highest Grade Achieved / MOS / Total Service: E-3 / 25U10, Signal Support System Specialist / 2 years, 2 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (11 May 2008 - 23 January 2009) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD 2624, dated 9 April 2009, reflects the applicant tested positive for THC 38 during an Inspection Random (IR) urinalysis conducted on 6 April 2009. FG Article 15, dated 5 May 2009, reflects the applicant wrongfully used marijuana between on or about 8 March 2009 and 6 April 2009. The punishment consisted of reduction to private/E-2; forfeiture of $784 pay for two months, to be automatically remitted if not vacated before 5 September 2009; and extra duty and restriction for 45 days. On 9 June 2009, the suspension of the punishment of forfeiture of $784 pay for two months was vacated due to the applicant wrongfully using marijuana between on or about 13 April 2009 and 12 May 2009. Electronic Copy of DD 2624, dated 21 May 2009, reflects the applicant tested positive for THC 151 during an Inspection Command Policy/Other (IO) urinalysis conducted on 12 May 2009. FG Article 15, dated 10 June 2009, reflects the applicant wrongfully used marijuana between on or about 13 April 2009 and 12 May 2009. The punishment consisted of reduction to private/E-1; for feature of $699 pay for two months, suspended, to be automatically remitted if not vacated before 10 October 2009; and extra duty and restriction for 45 days. Developmental Counseling Forms for separation counseling, punishment through an Field Grade Article 15, and a failed urinalysis. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides a VA Disability Ratings List, dated 9 August 2020, which reflects, in part, the applicant has a combined 80-percent service- connected disability rating with 50-percent for depressive disorder, not otherwise specified. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, personal statement, letters of support-3, VA Disability Ratings List. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is a married with children and is a homeowner. The applicant also has plans to attend college. 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. 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). 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 contends, in effect, the applicant self-medicated with marijuana to cope with the need for mental health treatment. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends, in effect, the applicant has been diagnosed with PTSD, depression, and anxiety due to military service. The applicant mental health got worst due to things the applicant saw while serving in Iraq. The applicant was not being treated for the mental health issues and was discharged instead. The applicant's AMHRR is void of any mental health diagnosis. The applicant provides a VA Disability Ratings List, dated 9 August 2020, which reflects, in part, the applicant has a combined 80-percent service-connected disability rating with 50-percent for depressive disorder, not otherwise specified. The applicant is a married with children and is a homeowner. The applicant also has plans to attend college. 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. 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: the applicant was initially service-connected for Mood Disorder, currently PTSD. (2) Did the condition exist or experience occur during military service? Yes. The applicant was initially service connected for Mood Disorder, with the PTSD only backdated to 2010. Accordingly, this indicates the VA, at most, believed the applicant had mood symptoms in-service. However, they did not believe PTSD existed in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Based solely on liberal consideration, and irrespective of the VA's voiced concern for a PTSD diagnosis and rating date reflecting trauma symptoms did not exist in-service, the current service-connected PTSD is applied. Given the nexus between trauma and substance use, the basis is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's PTSD outweighed the basis for separation - wrongful use of marijuana - for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the applicant has been diagnosed with PTSD, depression, and anxiety due to military service, and therefore, the applicant self-medicated with marijuana to cope with the need for mental health treatment. The Board found validity in this contention and voted to upgrade the applicant's discharge based on the applicant's PTSD outweighing the basis for separation. (2) The applicant is a married with children and is a homeowner. The applicant also has plans to attend college. 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 basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD outweighing the basis for separation - wrongful use of marijuana. Thus, relief is warranted. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD outweighed the basis for separation - wrongful use of marijuana. 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 AR20210009436 1