1. Applicant's Name: a. Application Date: 24 May 2021 b. Date Received: 24 May 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: 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 seeks relief contending, in effect, that he would like an upgrade of his discharge for the purpose of getting the medical help that he needs right now. The applicant contends that while in basic training they were doing bugle training and he was hit in the head. He didn't realize the seriousness of his injury until about 3 weeks later. This resulted in a blood clot in his head that cause him to have brain surgery. This is the cause of his TBI. During his deployment to Iraq (29 January 2005 to 15 January 2006) he experienced a number of factors that contributed to his court-martial. While in Iraq, he experienced extreme hazing. His NCO which happen to be a white male had the only 3 black male Soldiers cutting grass with a pair of scissors while taking picture of them. The applicant contends he also lost his uncle and grandmother in which they raised him due to his mom passing away while he was a child and he was denied the opportunity to go home for their funerals, this then put him in a depressive state. When he came home marijuana was the only thing that helped him get through his depression. When he spoke with his command and asked for help he was told to Soldier up; at which point they took his asking for help as a reason to do a unit urinalysis, he tested positive for marijuana. In a records review conducted on 8 December 2021, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. combat related PTSD diagnosis), and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 3. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 26 July 2006 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 14 June 2006, the applicant was charged with wrongfully using marijuana between on or about 1 May 2006 and 30 May 2006. (2) Legal Consultation Date: On 27 June 2006, the applicant voluntarily requested discharge in lieu of trial by court-martial under AR 635-200, Chapter 10, for charges preferred against him under the Uniform Code of Military Justice of Article 112a for the wrongful use of a controlled substance. (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions by all members of the chain of command (5) Separation Decision Date / Characterization: 14 July 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 November 2002 / 3 years (the applicant extended his enlistment for a period of 8 months, giving him a new ETS date of 20 July 2006). The DD Form 214 under review makes reference to the applicant's extension of service was at the request and for the convenience of the government / retained in service 247 days for the convenience of the government per UP 10 USC 12305. b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F10, Petroleum Supply Specialist / 3 years, 8 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait/Iraq (29 January 2005 to 15 January 2006) f. Awards and Decorations: ARCOM, NDSM, GWOTEM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 15 December 2004, reflects the applicant tested positive for THC 728 during an Inspection Random (IR) urinalysis testing conducted on 24 November 2004. Electronic copy of the DD Form 2624, dated 28 January 2005, reflects the applicant tested positive for THC 1441 during an Inspection Unit (IU) urinalysis testing conducted on 12 January 2005. FG Article 15, dated 20 March 2005 for wrongfully using marijuana between 25 October 2004 and 24 November 2004, wrongfully using marijuana between 13 December 2004 and 12 January 2005, and being derelict in the performance of his duties, in that he negligently failed to properly secure his weapon on or about 6 February 2005. The punishment consisted of reduction to E-1, forfeiture of $730.00 pay per month for two months, and extra duty for 45 days. Electronic copy of the DD Form 2624, dated 2 June 2006, reflects the applicant tested positive for THC 71 during an Inspection Random (IR) urinalysis testing conducted on 30 May 2006. Memorandum for Command, dated 16 April 2003, requesting personnel documents reference the applicant having been referred for initiation of Medical Evaluation Board Proceedings (MEB) due to a service-connected disability. Radiologic Examination Report, dated 14 August 2003, which indicates the applicant had a MRI of the brain on 6 May 2003. It was also noted that the applicant was experiencing issue with chronic headaches with dizziness. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Documents from the Emory Healthcare Veterans Program, make reference to the applicant having met the criteria for diagnoses of Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; ADAPCP Enrollment document, Administrative Decision documents from the Departments of Veterans Affairs; chronological record of medical care / in-service medical records; documents from the Emory Healthcare Veterans Program; several character reference / recommendation letters; enlisted record brief (ERB); prior record review documents; and DD Form 214 for the period of service under review. 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. (8) Chapter 15 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 15-3 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 memorandums. 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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-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. DISCUSSION 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 AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of records indicates separation action was initiated against the applicant for wrongfully using marijuana between on or about 1 May 2006 and 30 May 2006. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated that he understood an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant seeks relief contending that while in basic training they were doing pugil training and he was hit in the head. He didn't realize the seriousness of his injury until about 3 weeks later. This resulted in a blood clot in his head that cause him to have brain surgery. This is the cause of his TBI. During his deployment to Iraq (29 January 2005 to 15 January 2006) he experienced a number of factors that contributed to his court-martial. While in Iraq, he experienced extreme hazing. His NCO which happen to be a white male had the only 3 black male Soldiers cutting grass with a pair of scissors while taking picture of them. The applicant contends he also lost his uncle and grandmother in which they raised him due to his mom passing away while he was a child and he was denied the opportunity to go home for their funerals, this then put him in a depressive state. When he came home marijuana was the only thing that helped him get through his depression. When he spoke with his command and asked for help he was told to Soldier up; at which point they took his asking for help as a reason to do a unit urinalysis, he tested positive for marijuana. The applicant's contentions were noted; however, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant contends that he was hit in the head while in Basic Training resulting in a blood clot in his head that cause him to have brain surgery / TBI. The independent medical documents submitted by the applicant makes reference to him having met the criteria for diagnoses of Post- Traumatic Stress Disorder (PTSD) and Major Depressive Disorder was also noted. The applicant expressed his desire for an upgrade of his discharge for the purpose of getting the medical help that he needs right now. Eligibility for veteran's benefits to include medical and educational benefits under the Post-9/11 or Montgomery GI Bill do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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. The active duty records are limited and void of a behavioral health diagnosis. However, the applicant has been seen at the VA with a diagnosis of combat related PTSD. Additionally, the applicant submitted documentation of a civilian PTSD diagnosis. (2) Did the condition exist or experience occur during military service? Yes. The applicant asserts he experienced PTSD while in-service, and provided diagnosis by a civilian provider. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Based on liberal consideration guidance and nexus between trauma and substance use, the marijuana abuse is mitigated by the PTSD diagnosis. (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, that PTSD is often associated with trauma and substance use. As a result, the ADRB applied liberal consideration and found that the PTSD outweighed the applicant's marijuana abuse. b. Response to Contention(s): (1) The applicant contends that during his deployment to Iraq (29 January 2005 to 15 January 2006), he experienced several factors that contributed to his court-martial, including hazing and the death of family members. When he came home, marijuana was the only thing that helped him get through his depression. When he spoke with his command and asked for help, he was told to Soldier up, at which point they took his asking for help as a reason to do a unit urinalysis; he tested positive for marijuana. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's wrongful use of marijuana. (2) The applicant contends that he was hit in the head while in basic training resulting in a blood clot in his head that caused him to have brain surgery / TBI. The Board noted the independent medical documents submitted by the applicant referring to him having met the criteria for diagnoses of Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. combat related PTSD diagnosis), and post-service accomplishments. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had PTSD which mitigated the applicant's misconduct for the wrongful use of marijuana. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, Chapter 15 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 AR20210015551 1