1. Applicant’s Name: a. Application Date: 4 June 2022 b. Date Received: 13 June 2022 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge should be fair due to the applicant was injured while on active duty. While waiting and dealing with the reality that the applicant’s career was ending, the applicant consumed alcohol and smoked marijuana to deal with stress and anxiety. The applicant endured many physical and mental aliments indicative of post- traumatic stress disorder (PTSD) such as witnessing and saving a fellow Soldier from committing suicide. The correction should be made because the applicant honorably served our country and was willing to give the applicant’s own life. Opportunities should not be stripped from those that served their country and suffer from various medical conditions due to serving. The applicant almost lost the applicant’s life when pinned between two tanks. The applicant never smoked marijuana or got in trouble prior to being in the Army. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a personal appearance hearing conducted on 15 May 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 20 March 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 February 2009, however, it appears the applicant signed the document on 4 March 2009. (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used MDMA (Ecstasy). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 10 February 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 January 2007 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-2 / 88M10, Motor Transport Operator / 3 years, 1 month, 10 days d. Prior Service / Characterizations: ARNG, 27 August 2005 - 4 August 2006 / UNC e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM, GWTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 21 April 2008, for failing to go at the time prescribed to the applicant’s place of duty on or about 14 January 2008; and on or about 3 January 2008, the applicant wrongfully appropriated monies, of a value of $100.00 and 200 euro, the property of another Soldier. The punishment consisted of a reduction to E-1; forfeiture of $314.00 pay per month for two months (suspended); and extra duty and restriction for 45 days. Electronic Copy of DD Form 2624, dated 11 June 2008, reflects the applicant tested positive for MDMA (Ecstasy), during an Inspection Random (IR) urinalysis testing, conducted on 19 May 2008. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 24 July 2018, reflects the applicant was flagged for involuntary separation/field initiated (BA) effective 24 July 2018. FG Article 15, dated 8 October 2008, for: wrongfully using MDMA (Ecstasy) on or about 15 May 2008; with the intent to deceive, on or about 8 July 2008, make to an investigator, an official statement to wit: in a Sworn Statement (DA Form 2823) the applicant claimed to thinking that the pill the applicant took was stacker 2, which statement was false in that the applicant knew that the drug was ecstasy and not Stacker 2, and was then known by the applicant to be so false; with the intent to deceive, on or about 25 June 2008, make to an investigator, an official statement to wit: in a Sworn Statement (DA Form 2823) state "I have never took meth knowingly or any illegal drug and I do not know anyone who uses illegal drugs" or words to that effect, which statement was false in that the applicant has used an illegal drug, and, that the applicant does know people who use illegal drugs, was then known by the applicant to be so false; being disrespectful in deportment toward a noncommissioned officer (NCO), then known by the applicant to be a superior NCO, who was then in execution of the NCO’s office, by arguing with the NCO and continuing to talk when told to "at ease" on or about 18 July 2008; and being disrespectful in language toward a noncommissioned officer, then known by the applicant to be a superior NCO, who was then in execution of the NCO’s office, by saying to the NCO "go fuck yourself," or words to that effect on or about 25 September 2008. The punishment consisted of forfeiture of $675 (suspended); and restriction for 45 days (suspended); extra duty for 45 days and an oral reprimand. Ten Developmental Counseling Forms, for various acts of misconduct. Mental Status Evaluation (MSE) memorandum, dated 20 January 2009, reflects the applicant was psychiatrically cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; was or is responsible for actions; and met medical retention requirements. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Progress Notes, dated 2 February 2022, shows the applicant was diagnosed with F43.10 PTSD, unspecified, F32.2 Major depressive disorder, F10.10 alcohol abuse, and F12.10 cannabis abuse. (2) AMHRR Listed: MSE as described in previous paragraph 4h. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; self-authored letter; PTSD diagnosis. 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 “JKA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. 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. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends, in effect, the discharge should be fair due to the applicant was injured and suffered from physical and mental aliments while on active duty. The correction should be made because the applicant honorably served this country. The applicant provided progress notes which shows the applicant was diagnosed with F43.10 PTSD, unspecified, F32.2 Major depressive disorder. The applicant refers to military medical records, compensation and pension file, and statements in support of benefits claims for review, however the applicant did not provide these documents. The AMHRR shows the applicant underwent a MSE on 20 January 2009, which indicates the applicant was psychiatrically cleared for any administrative actions. The MSE does not indicate any diagnosis. The applicant contends, in effect, while waiting and dealing with the reality that the applicant’s career was ending, the applicant consumed alcohol and smoked marijuana to deal with stress and anxiety. The applicant had many legitimate avenues through which to obtain assistance or relief, and there is no evidence in the record that the applicant ever sought such assistance before committing the misconduct which led to the separation action under review. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant marked the Reprisal/Whistleblower box on the DD Form 149; however, the applicant did not submit any evidence to support or substantiate why the applicant checked the box. 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 and character witness 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): Mr. M. C. (witness) 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: The VA has service connected the applicant for Major Depressive Disorder. The applicant, through self-assertion, has been diagnosed with PTSD. 4j PTSD, MDD, Alcohol Abuse, Cannabis Abuse. (2) Did the condition exist or experience occur during military service? Yes. The applicant asserts "endured many physical and mental aliments indicative of post-traumatic stress disorder (PTSD)." (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that this advisor is not applying PTSD as the VA C&P did not diagnose or service connect the applicant for the condition and providers who have diagnosed it relied heavily on self-report with lack of awareness for inconsistencies that would have required further examination to ensure validity. Rather, this advisor considered the service connected MDD and determined there is no medical mitigation. Specifically, the MDD is only backdated to 2023, 14 years’ post-discharge, indicating he did not have the condition in-service. Additionally, frequent in-service medical visits are void of indicators the applicant was experiencing a behavioral health condition of any form. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends, in effect, the discharge should be fair due to the applicant was injured and suffered from physical and mental ailments while on active duty. The Board considered this contention and determined the applicant’s physical and mental ailments do not outweigh the additional misconduct found in applicant’s file of larceny, making false official statements, and reckless driving. Due to the severity of the unmitigated misconduct the applicant’s discharge is proper and equitable. (2) The correction should be made because the applicant honorably served this country. The Board considered the applicant’s three years of service and the numerous awards received by the applicant but determined that these factors did not outweigh the additional misconduct found in applicant’s file of larceny, making false official statements, and reckless driving. (3) The applicant contends, in effect, while waiting and dealing with the reality that the applicant’s career was ending, the applicant consumed alcohol and smoked marijuana to deal with stress and anxiety. The Board considered this contention and determined the applicant’s stress and anxiety do not outweigh the additional misconduct found in applicant’s file of larceny, making false official statements, and reckless driving. Due to the severity of the unmitigated misconduct the applicant’s discharge is proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s PTSD and MDD did not excuse or mitigate the offenses of larceny, making false official statements, and reckless driving. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (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 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 AR20220009063 1