1. Applicant's Name: a. Application Date: 13 January 2021 b. Date Received: 19 January 2021 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 and a reentry (RE) code change. The applicant seeks relief contending, in effect, improper treatment for the applicant post- traumatic stress disorder (PTSD) was the cause of the applicant's drug abuse. The treatment for PTSD was not to the level it is today when the applicant was seeking treatment in 2009. b. Board Type and Decision: In a records review conducted on 02 June 2023, and by a 5-0 vote, the Board determined that the discharge was inequitable based on the applicant's in- service mitigating factors of length, quality, combat and concurred with the conclusion of the medical advising official that the applicant's BH Conditions of MDD, PTSD, Anxiety DO and Acute Reaction to Stress mitigate the applicant's misconduct- wrongful use of 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. 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-3 / General (Under Honorable Conditions) b. Date of Discharge: 9 February 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 January 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant between 11 and 15 September 2008, wrongfully used cocaine. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 January 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 23 January 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 May 2008 / 3 years / The applicant extended the most recent enlistment by a period of 6 months on 1 May 2008, giving the applicant a new ETS of: 31 October 2011. b. Age at Enlistment / Education / GT Score: 22 / GED / 107 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19K20, M1 Armor Crewman / 5 years, 3 months, 19 days d. Prior Service / Characterizations: RA, 15 January 2004 - 12 October 2006 / HD RA, 13 October 2006 - 30 April 2008 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (14 November 2005 - 28 October 2006) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, CAB g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: Company Grade Article 15, imposed 11 April 2008, for being derelict in the performance of duties by willfully failing to run a Spur Ride Lane (29 February 2008). The punishment consisted of a forfeiture of $72.49 pay: and extra duty and restriction for 7 days. The Article 15 was included in the separation packet but was imposed during the previous enlistment period. Electronic Copy of DD Form 2624, dated 17 October 2008, reflects the applicant was tested during a Probable Cause (PO) urinalysis testing, conducted on 15 September 2008. The results were redacted. Memorandum, subject: Drug Testing Laboratory (DTL), Positive Urinalysis Notification, dated 21 October 2008, reflects the applicant tested positive for COC 115 (cocaine), during a urinalysis testing, conducted on 15 September 2008. Field Grade Article 15 dated 18 November 2008, for failing to go at the time prescribed to the appointed place of duty (5 October 2008) and wrongfully using cocaine (between 11 and 15 September 2008). The punishment consisted of a reduction to E-4; forfeiture of $1,023 pay; and extra duty and restriction for 40 days. Report of Mental Status Evaluation, dated 30 October 2008, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. Commander's Report, dated 10 January 2009, reflects the applicant's record of other disciplinary action, including non-judicial punishment includes a Company Grade Article 15 imposed on 11 April 2008 for dereliction of duties. Two Developmental Counseling Forms, for failing to go to the appointed place of duty; failing to live by the Army Core Values; and refusing to train. 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 214; DD Form 293; two Letters of Recommendation for Selection as a Warrant Officer (one unsigned); and Enlisted Record Brief. 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) 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(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing 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 under paragraph 14- 12a or 14-12b as appropriate. 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, 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 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 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. 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. 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 and a reentry code change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was assigned an RE code of "3." An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends PTSD affected behavior, which ultimately led to the discharge. The applicant's AMHRR contains no documentation of PTSD diagnosis. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 30 October 2008, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends not being properly treated for PTSD. The applicant's AMHRR is void of a PTSD diagnosis The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good military service. 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: Acute Reaction to Stress; Anxiety Disorder; Major Depressive DO (MDD); PTSD. VA: PTSD (70%SC). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found the diagnoses of Acute Reaction to Stress, Anxiety DO, MDD and PTSD were made on active duty. VA service connection for PTSD (70%) establishes it occurred during active 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 several mitigating BH conditions, PTSD/MDD/Anxiety DO/Acute Reaction to Stress. As there is an association between these conditions and use of illicit substances to self-medicate symptoms, there is a nexus between these conditions and applicant 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 Acute Reaction to Stress, Anxiety Disorder, Major Depressive DO (MDD) and PTSD outweigh the applicant's wrongful use of cocaine. b. Response to Contention(s): (1) The applicant requests a reentry eligibility (RE) code change. The Board considered this contention and voted to maintain the RE-code to a RE-3, which is a waivable code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (2) The applicant contends PTSD affected behavior, which ultimately led to the discharge. The Board considered this contention and the totality of the applicant's service record during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's length, quality, combat and BH conditions of MDD, PTSD, Anxiety DO and Acute Reaction to Stress mitigate the applicant's misconduct - wrongful use of cocaine. Therefore, the Board voted to upgrade the applicant's discharge to Honorable. (3) The applicant contends not being properly treated for PTSD. The Board liberally considered this contention, however, did not make a determination as the Board already voted to upgrade the applicant's contention as referenced in paragraph 9b (2) above. (4) The applicant contends good service, including a combat tour. The Board considered this contention; however, the Board did not make a determination as the Board already voted to upgrade to Honorable as referenced in paragraph 9b (2) above. (5) The third-party statements provided with the application speak highly of the applicant. The Board considered this contention non-persuasive during its deliberations, as the Board already voted to upgrade the applicant's contention as referenced in paragraph 9b (2) above. c. The Board determined that the characterization was inequitable based on the applicant's in-service mitigating factors of length, quality, combat and concurred with the conclusion of the medical advising official that the applicant's BH Conditions of MDD, PTSD, Anxiety DO and Acute Reaction to Stress mitigate the applicant's misconduct - wrongful use of 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. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's in-service mitigating factors of length, quality, combat and concurred with the conclusion of the medical advising official that the applicant's BH Conditions of MDD, PTSD, Anxiety DO and Acute Reaction to Stress mitigate the applicant's misconduct - wrongful use of cocaine. 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 / 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 AR20210011211 1