1. Applicant's Name: a. Application Date: 2 September 2020 b. Date Received: 15 September 2020 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 relief stating their discharge was inequitable because they were discharged under "Vietnam Error" policy which has since changed. The new policy provides special consideration for service members who show signs of Post-Traumatic Stress Disorder (PTSD). There is substantial doubt that their discharge would have been the same under current policies and according to the Hagel, Kurta, and Carson memorandums. (3) They were trying to find some way to forget about what they had just been through, and they did not have the coping skills to adjust. Their PTSD arose from the year they spent in Iraq, providing convoy security throughout the country and losing a fellow Soldier to an Improvised Explosive Devise. Their first years of service were packed with outstanding achievements. They received an Army Good Conduct Medal right before they came home from Iraq, which is not in their file, but they are requesting it to be corrected. (4) After their discharge from the Army they enrolled in a treatment program and continues to receive counseling monthly and has been sober for almost 15 years. They have gone on to be a great father, husband, community leader, private pilot, coal miner, and now as an Inspector with the Department of Labor's Mine Safety and Health Administration. They think if the Army had been better at treating for PTSD after Soldiers return from war, their misconduct would have never happened. Under the current policy they would have been treated for PTSD and their discharge would have been honorable. They are respectfully asking that their case be reviewed and given "liberal consideration." b. Board Type and Decision: In a records review conducted on 08 December 2023, and by a 5-0 vote, the board determined the discharge is inequitable based on the applicant's length, quality, and combat service to include the applicant in service diagnosis of PTSD mitigated the applicant's drug use - tested positive for cocaine. 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. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / Army Regulations 635-200, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 29 March 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 February 2006 (2) Basis for Separation: tested positive for cocaine at a random unit urinalysis on 28 November 2005 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 February 2006 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 8 March 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 September 2002 / 4 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A1O, Automated Logistical / 3 years, 6 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / Iraq (20 November 2004 - 19 November 2005) f. Awards and Decorations: ARCOM, AAM-2, NDSM, GWTSM, KDSM, ASR, OSR-2, ICM 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 (UCMJ)), dated 21 December 2005, reflects the applicant received nonjudicial punishment for wrongfully use cocaine, between on or about 21 November 2005 and 28 November 2005. This is in violation of Article 112a (Wrongful Use, Possession, etc., of Controlled Substances), UCMJ. Their punishment consisted of a reduction in rank/grade to private first class/E-3, forfeiture of $820.00 pay for 2 months, and extra duty for 45 days. (2) A DD Form 2807-1 (Report of Medical History), dated 18 January 2006, reflects in - the applicant marked "Yes" to the question * "Have you ever had, or do you now have" the applicant marked "Yes" to the following * item 17a - Nervous trouble of any sort (anxiety or panic attacks) * item 17d - Frequent trouble sleeping * item 17d - Received counseling of any type * item 17i - Used illegal drugs or abused prescription drugs * item 29 (Explanation of "Yes" Answers) - the applicant indicated their treatment at Behavioral Health for PTSD on 4 October and their use of marijuana in 1998 and marijuana with cocaine in 2005 * item 30 (Examiner's Summary and Elaboration of all Pertinent Data) reflects illegible hand-written comments to include a diagnosis of PTSD in October 2005 (4) A DD Form 2697 (Report of Medical Assessment), undated, reflects in * item 20 (Health Care Provider Comments) "PTSD" * item 21 (Was Patient Referred for further Evaluation) - Yes; however, there is no evidence of a referral (5) A DD Form 2808 (Report of Medical Examination), dated 18 January 2006, reflects the examiner indicated the applicant is qualified for service. Item 77 (Summary of Defects and Diagnosis) reflects "@RPPS [Retro patellar Pain Syndrome] and PTSD." (6) A DA Form 3822 (Report of Mental Status Evaluation), dated 26 January 2006, reflects the applicant has the mental capacity to understand and participate in the proceedings, was mentally responsible, and meets the retention requirements. In the Remarks Section, the Mental Health Specialist remarks there is no evidence of any psychiatric condition which would warrant disposition through medical channels. The applicant is psychiatrically cleared for any administrative action deemed appropriate by their command. Diagnoses includes an Axis I diagnosis of Cocaine Abuse. (7) A memorandum, Headquarters and Headquarters Company, Corps Distribution Command, subject: Separation under Army Regulation 635-200, Paragraph 14-12c, Commission of a Serious Offense, 9 February 2006, 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 testing positive for cocaine at a random unit urinalysis on 28 November 2005. On the same day the applicant acknowledged the basis for the separation and of the rights available to them. (8) On 9 February 2006, the applicant's company commander submitted a request to separate them prior to their expiration term of service. The company commander states a description of rehabilitation attempts - none. (9) On 13 February 2006, 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 not to submit statements in their behalf. The applicant understood that they may expect to encounter substantial prejudice in civilian life if a General Discharge Under Honorable Conditions is issued to them. (10) A memorandum, Headquarters, 1st Corps Support Command (Airborne), subject: Separation under Army Regulation 635-200, Chapter 14, Paragraph 14-12c (2), Commission of a Serious Offense - Abuse of Illegal Drugs, dated 8 March 2006, the separation authority directed that the applicant be separated from the U.S. Army and will be issued a General Discharge Certificate. (11) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged on 29 March 2006, with 3 years, 6 months, and 26 days of net active service this period. They have not completed the first full term of service of their contractual obligation of 4 years. (12) The Enlisted Record Brief, dated 10 March 2006, reflects the applicant was advanced to the rank/grade of specialist/E-4 on 4 March 2004 and demoted to the rank/grade of private first class/E-3 on 21 December 2005. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), with attached letters * excerpts of their Army Military Human Resource Record (AMHRR) to include enlistment documents, case files for approved separation, and their DD Form 214 documents * excerpts of their copies of awards and training certificates * Certificate of Achievement reflecting their completion of a Substance Abuse Program after their discharge from the U.S. Army * Multiple Identification Cards and Civilian Certifications * Multiple Department of Defense (DoD) Policy Guidance Memoranda published between 2014 and 2018 * eight 3rd Party Statements attesting to the applicant's character, work ethic, selflessness and dedication to service, diagnosis and treatment of PTSD, achievements after their discharge from the U.S. Army, and support of their discharge upgrade request to "Honorable" * Pilot Certificate, reflecting their rating as a private pilot * Pictures of themselves as a pilot and of their family members * Department of Veterans Affairs (VA) letter, reflecting the applicant's summary of benefits to include an 80-percent combined service-connected evaluation 6. POST SERVICE ACCOMPLISHMENTS: * Substance Abuse Program * Private Pilot Certification * Employment Advancements and Training 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), 6 July 2005, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (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. Paragraph 14-12c (2) (Abuse of Illegal Drugs is Serious Misconduct), stated, abuse of illegal drugs is serious misconduct; however, 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. 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. (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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c (2), 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 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. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) dated 15 October 2001, prescribed policies, and procedures to implement, administer, and evaluate the ASAP. The ASAP is a command program that emphasizes readiness and personal responsibility. The ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier's chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army Values, and the standards of performance, discipline, and readiness necessary to accomplish the Army's mission. (1) Unit commanders must intervene early and refer all Soldiers suspected or identified as alcohol and/or drug abusers to the ASAP. The unit commander should recommend enrollment based on the Soldier's potential for continued military service in terms of professional skills, behavior, and potential for advancement. (2) ASAP participation is mandatory for all Soldiers who are command referred. Failure to attend a mandatory counseling session may constitute a violation of Article 86 (Absence Without Leave) of the UCMJ. (3) Alcohol and/or other drug abusers, and in some cases dependent alcohol users, may be enrolled in the ASAP when such enrollment is clinically recommended. Soldiers who fail to participate adequately in, or to respond successfully to, rehabilitation will be processed for administrative separation and not be provided another opportunity for rehabilitation except under the most extraordinary circumstances, as determined by the Clinical Director in consultation with the unit commander. (4) When a unit commander, in consultation with the ASAP clinical staff, determines that rehabilitative measures are not practical and that separation action will be initiated, all Soldiers identified as illegally abusing drugs will be processed for administrative separation. Soldiers diagnosed as being drug dependent by a physician will be detoxified and then processed for administrative separation and be considered for disciplinary action under the UCMJ. h. Manual for Courts-Martial, United States (2005 Edition) stated, military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the Armed Forces. Appendix 12 (Maximum Punishment Chart) Manual for Courts-Martial shows the maximum punishments include punitive discharge for violating the following Article 112a (Wrongful Use, Possession, etc., of Controlled Substances). 8. SUMMARY OF FACT(S): a. The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. b. The applicant's Army Military Human Resource Record (AMHRR) reflects the applicant received nonjudicial punishment under the UCMJ and was involuntary separation from the service The applicant's DD Form 214 indicates their discharge under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c (2), by reason of Misconduct (Drug Abuse), with a characterization of service of general (under honorable conditions). The applicant completed 3 years, 6 months, and 26 days of their 4-year service obligation. 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 applicant's AMHRR provide no documentation of a diagnosis of PTSD or other mental health conditions during the applicant's military service. Likewise, there was no evidence of a reprisal/whistleblower action taken against the applicant. e. Published Department of Defense 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: e. 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. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found PTSD was diagnosed while on active duty. (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 PTSD is associated with the use of illicit drugs to self- medicate painful emotional symptoms, there is a nexus between his diagnosis of PTSD and his wrongful use of cocaine. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's PTSD outweighed the drug abuse - tested positive for cocaine basis for separation for the aforementioned reason. f. Response to Contention(s): (1) The applicant requests an upgrade to honorable. The Board considered this contention during proceedings and determined that relief was warranted because the applicant's length, quality, and combat service to include the applicant in service diagnosis of PTSD mitigated the applicant's drug use - tested positive for cocaine - basis for separation (2) The applicant contends their discharge was inequitable because they were discharged under "Vietnam Error" policy which has since changed. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the information outlined in paragraph 9f (1). (3) The applicant contends they were trying to find some way to forget about what they had just been through in Iraq, and they did not have the coping skills to adjust. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the information outlined above in paragraph 9f (1). (3) The applicant contends they received an Army Good Conduct Medal right before they came home from Iraq, which is not in their file, but they are requesting it to be corrected. The board considered this contention and determined relief was warranted based on other circumstances as outlined above in paragraph 9f (1). (4) The applicant contends they think if the Army had been better at treating for PTSD after Soldiers return from war, their misconduct would have never happened. Under the current policy they would have been treated for PTSD and their discharge would have been honorable. They are respectfully asking that their case be reviewed and given "liberal consideration." The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the information outlined in paragraph 9f (1). g. The Board determined the discharge is inequitable based on the applicant's length, quality, and combat service to include the applicant in service diagnosis of PTSD mitigated the applicant's drug use. 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. h. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service to Honorable because the applicant's length, quality, and combat service to include the applicant in service diagnosis of PTSD mitigated the applicant's drug use - tested positive for cocaine- basis for separation. (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: i. Issue a New DD-214 / Separation Order: Yes j. Change Characterization to: Honorable k. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN l. Change RE Code to: No Change m. 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 AR20210009599 1