1. Applicant's Name: a. Application Date: 18 July 2022 b. Date Received: 18 July 2022 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 narrative reason change. The applicant seeks relief contending, in effect, the applicant was raped while on leave in Thailand. The applicant was prescribed valium and other anti-HIV medications after the raped. Upon returning from the leave the applicant and the applicant's partner both tested positive for valium. The applicant had a prescription, but the applicant's partner did not. CID began investigating how the applicant's partner ended up testing positive for valium. The applicant had no idea if the partner took the valium or if the applicant handed the valium to the partner. After being interrogated by CID, the applicant admitted giving the partner the valium. The applicant and the partner were separated for drug abuse. The discharge is preventing the applicant from receiving full GI Bill benefits and finding good employment. b. Board Type and Decision: In a personal appearance hearing conducted on 15 May 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's MST outweighing the applicant's distribution of Valium, FTRs and conspired to commit armed robbery of a Walgreens pharmacy basis for separation. 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. The Board determined the RE code was proper and equitable and voted not to change it. Please see Section 10 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: 28 August 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 June 2014 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully distributed Valium, a Schedule I controlled substance between on or about 10 August 2013 and on or about 23 August 2013; on two separate occasions between 17 December 2013 and 24 December 2014, the applicant failed to report to the appointed place of duty; and on or about 24 December 2013, the applicant conspired to commit armed robbery of a Walgreens pharmacy at or near Clarksville, Tennessee on or about 24 December 2013. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 June 2014 (5) Administrative Separation Board: On 12 June 2014, the applicant waived consideration and personal appearance before an administrative board contingent upon the applicant receiving a characterization of service no less favorable than a General (Under Honorable Conditions) discharge. (6) Separation Decision Date / Characterization: 4 August 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 December 2009 (Reenlistment contract not in file) b. Age at Enlistment / Education / GT Score: 21 / GED / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A10, Automated Logistical Specialist / 6 years, 2 months, 12 days d. Prior Service / Characterizations: RA, 17 June 2008 - 9 December 2009 / HD e. Overseas Service / Combat Service: SWA / Iraq (15 October 2009 - 24 July 2010), Afghanistan (30 January 2013 - 21 September 2013) f. Awards and Decorations: AAM-3, MUC, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR, NATO MDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A CID Report of Investigation, dated 6 September 2013, reflects an investigation established probable cause to believe the applicant was raped by an unknown male while on leave in Thailand. A CID Report of Investigation, dated 1 November 2013, reflects an investigation established probable cause to believe the applicant committed the offense of wrongful distribution of Valium. FG Article 15, dated 26 November 2013, reflects the applicant wrongfully distributed Valium between on or about 10 August 2013 and 23 August 2013. The punishment consisted of reduction to private first class/E-3, suspended, to be automatically remitted if not vacated before 25 May 2014 and forfeiture of $1,007 pay per month for two months, suspended, to be automatically remitted if not vacated before 25 May 2014. On 9 January 2014, the imposed sentence of the punishment imposed on 26 November 2013 was vacated due to the applicant failing to go at the prescribed time to the appointed place of duty on or about 17 December 2013. A CID Report of Investigation, dated 13 May 2014, reflects the information in this report was based upon an allegation or preliminary investigation and could change prior to completion of the investigation. The CID office was notified by a sexual assault response coordinator who report the applicant alleged to have been raped while in Louisiana. The applicant initially filed a restricted report on 6 January 2014 and changed the restricted report to unrestricted on 9 May 2014. The applicant related traveling to Louisiana with Mr. P (deceased) and was drugged and raped by Mr. P and another unknown male civilian. The applicant related an unknown female civilian was also present who inappropriately touched the applicant. This was report and was terminated with no other investigation. On 4 August 2014, the separation authority reviewed the facts and circumstances surrounding the applicant's unrestricted reports of sexual assault and fully considered the applicant's record of military service and particular situation. The separation authority found the separation did not appear to be in retaliation for the applicant's filing an unrestricted report of sexual assault; the separation did not involve a medical condition related to the sexual assault; the separation was in the best interest of the Army and the applicant; and the applicant's separation would not have any impact upon the disposition or prosecution of the alleged offenders. Finally, the date listed in the basis for separation is amended to 24 December 2013 and the reference to Valium as a Schedule I controlled substance is amended to reflect it is a Schedule IV controlled substance. Finally, effective 9 January 2014, the separation authority set aside the portion of the applicant's punishment imposed upon the applicant pertaining to the reduction to the grade of private first class/E-3. On 4 August 2014, the punishment of reduction to private first class/E-3 was set aside due to fundamental fairness. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: An MSE, dated 19 March 2014, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with anxiety disorder, NOS. 5. APPLICANT-PROVIDED EVIDENCE: On-line Application, personal statement. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c(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. (7) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "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). 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 narrative reason change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant requests the narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be listed in tables 2-2 or 2-2 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends, in effect, the applicant was raped while on leave in Thailand. A CID Report of Investigation, dated 6 September 2013, reflects an investigation established probable cause to believe the applicant was raped by an unknown male while on leave in Thailand. The applicant contends, in effect, the applicant was prescribed valium and other anti-HIV medications after the raped. Upon returning from the leave the applicant and the applicant's partner both tested positive for valium. The applicant had a prescription, but the applicant's partner did not. CID began investigating how the applicant's partner ended up testing positive for valium. The applicant had no idea if the partner took the valium or if the applicant handed the valium to the partner. After being interrogated by CID, the applicant admitted giving the partner the valium. The applicant and the partner were separated for drug abuse. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and marred the quality of the applicant service. The applicant contends, in effect, the discharge is preventing the applicant from receiving full GI Bill benefits. Eligibility for veteran's benefits to include educational benefits under the post-9/11 or Montgomery GI Bill does 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. The applicant contends, in effect, the discharge is preventing the applicant from finding good employment. The Board does not grant relief to gain employment or enhance employment opportunities. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None. b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): None. 10. 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: The applicant held in-service diagnoses of Anxiety Disorder NOS, Adjustment Disorder, PTSD, and Nightmare Disorder with at least two instances of MSTs and one IPV. Post-service, the applicant is service connected for PTSD due to MSTs. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Anxiety Disorder NOS, Adjustment Disorder, PTSD, and Nightmare Disorder with at least two instances of MSTs and one IPV. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and avoidance/difficulty with authority, the FTRs are mitigated. In terms of the distributing Valium to applicant's boyfriend, while the applicant asserts not being fully aware of events after the MST and hospital visit, within the separation packet the applicant clearly lays out knowledge applicant's boyfriend was taking the medication, as applicant was trying to hide it from him, and awareness he took some while they were traveling back from R&R. As such, it is unlikely applicant was in an altered state when providing medication and accordingly, this misconduct is not mitigated. With regards to conspiring to commit armed robbery, this would not mitigated as the processes include deliberate and conscious decision- making overtime with an ability to consider multiple options, plans, means of evasion, etc. With respect to requested changes, it is this advisor's opinion the IPV and MSTs outweigh the mitigated FTRs and allowing applicant's boyfriend to take Valium. However, the Board will need to consider the applicant's testimony about the conspiracy to commit armed robbery and weigh that against the MSTs, IPV, and potential impropriety within applicant's Chapter MSE. (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 MST outweighed the Valium distribution, FTRs and conspiring to commit armed robbery of a Walgreens pharmacy basis for separation for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the applicant was raped while on leave in Thailand. The Board considered this contention and voted to upgrade the discharge based on the applicant's MST fully outweighing the applicant's Valium distribution, FTRs and conspiring to commit armed robbery of a Walgreens pharmacy. The Board determined the file did not have sufficient evidence to support applicant conspired to commit armed robbery of a Walgreens pharmacy. (2) The applicant contends the discharge is preventing the applicant from receiving full GI Bill benefits. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, 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. (3) The applicant contends the discharge is preventing the applicant from finding good employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. c. The Board determined the discharge is inequitable based on the applicant's MST outweighing the applicant's distribution of Valium, FTRs and conspired to commit armed robbery of a Walgreens pharmacy basis for separation. 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. The Board determined the RE code was proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's MST mitigated the applicant's misconduct of Valium distribution, FTRs and conspiring to commit armed robbery of a Walgreens pharmacy. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to 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 RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 11. 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: No Change 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 AR20220008852 1