1. Applicant's Name: a. Application Date: 16 September 2022 b. Date Received: 27 September 2022 c. Counsel: 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 served in the Army from 5 August 2009 to 6 September 2012, until administratively discharged under general, under honorable conditions), because the applicant tested positive for marijuana in a single random drug screening. This one-time failed drug test, which is mitigated by PTSD, related to the applicant's service. The applicant had no other misconduct in the service history and earned numerous medals, including a Combat Action Badge for service in Afghanistan. Since the applicant's separation from the Army, the military's views concerning character, rehabilitation, and second chances have changed significantly, particularly where mental health conditions and other mitigating factors are involved. Although the applicant's conduct violated Army Standards, the applicant accepts full responsibility for the actions and should be granted relief based on the Department of Defense's (DoD) mandates regarding PTSD and liberal consideration. The board must consider other relevant factors, such as youthful indiscretion, accepting responsibility for the misconduct, the severity of the offense, post-discharge life, and character references. The one-time failed drug test was a non-violent offense, which can be explained by the applicant's young age and the significant stress the applicant was experiencing. The evidence shows the applicant used marijuana to self-medicate symptoms of undiagnosed post-traumatic stress disorder (PTSD) following the combat deployment to Afghanistan. Since the applicant's discharge, the relative severity of the offense has decreased. In particular, in the past decade, society has become more accepting of marijuana use and medical research has suggested that marijuana can effectively treat PTSD in veterans. The applicant was discharged from the Army on 6 September 2012, fewer than 13 weeks before the end of the applicant's active-duty term. At discharge, the applicant was 21 years old and suffered from PTSD, knee pain, and tinnitus, all of which were later found to be service- connected. On 5 September 2012, one day before the applicant's separation, the applicant's medical record reflected diagnoses: PTSD; major depressive disorder, recurrent, severe with psychotic features. The VA rated the applicant 50 percent disabled because of PTSD and service-connection was also established for both knees and for tinnitus. The applicant has held steady employment, owns a masonry business and a home, and has become a father. The applicant graduated from the police academy in 2018. After graduation, the applicant worked full time as a corrections officer and developed a great reputation with the community. Counsel and the applicant further detail the contentions in the Memorandum in Support of Discharge Upgrade Application (Legal Brief), and applicant's Declaration submitted with application. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 12 June 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD and MDD outweighing the basis for separation - wrongful use of marijuana. 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, and the reentry code to RE-3. 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, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 6 September 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 31 July 2012 (2) Basis for Separation: The applicant was informed of the following reasons: Misconduct, abuse of illegal drugs, specifically between 2 and 31 May 2012, the applicant wrongfully used marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 7 August 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 21 August 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 August 2009 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19D10, Calvary Scout / 3 years, 1 month, 2 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (7 June 2010 - 12 July 2011) f. Awards and Decorations: AAM-2, NATOMDL, NDSM, ACM-2CS, GWOTSM, ASR, OSR-2, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 11 June 2012, reflects the applicant tested positive for THC 72 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 31 May 2012. Army Substance Abuse Program (ASAP) Enrollment form, dated 25 June 2012, reflects the applicant was command-referred to ASAP because of illegal drug use. Developmental Counseling Form, dated 19 June 2012, for testing positive on a urinalysis and pending separation from service. Field Grade Article 15, dated 3 July 2012, for wrongfully using marijuana (between 2 and 31 May 2012). The punishment consisted of a reduction to E-1; forfeiture of $745 pay per month for two months; and extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Chronological Record of Medical Care, dated between 27 June and 30 July 2012, reflecting the applicant was diagnosed with cannabis abuse; alcohol abuse; and adjustment disorder, with mixed emotional features. Sunrise Counseling letter, dated 5 September 2012, reflecting was diagnosed with PTSD; major depressive disorder, recurrent, severe without psychotic features. The Department of Veterans Affairs Rating Decision, dated 21 November 2012, reflecting the VA rated the applicant 50 percent service-connected disabled for PTSD; 10 percent for chondromalacia patella, left knee; 10 percent for chondromalacia patella, right knee; and 10 percent for tinnitus; for a combined rating of 70 percent. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Memorandum in Support of Discharge Upgrade Application (Legal Brief), with all listed exhibits 1 through 36. 6. POST SERVICE ACCOMPLISHMENTS: The applicant maintained employment since 2018; graduated from the police academy and was employed as a corrections officer; owns a masonry business and a home; is an outstanding parent; and has a great reputation in the community. 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-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. 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 contends the narrative reason for the discharge needs to 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 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 as listed in tables 2-2 or 2-3 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 undiagnosed PTSD affected behavior which led to the discharge and the VA rated the applicant 50 percent disabled because of PTSD. The applicant provided medical documents indicating the applicant was diagnosed with PTSD; major depressive disorder, recurrent, severe without psychotic feature; cannabis abuse; alcohol abuse; and adjustment disorder, with mixed emotional features. The VA rated the applicant 50 percent service-connected disabled for PTSD. The AMHRR is void of a mental status evaluation. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant claims the offense leading to the discharge was minor, non-violent, and less severe in light of the current marijuana laws. In accordance with the Manual for Courts-Martial (MCM), using marijuana is a violation of Article 112a of the Uniform Code of Military Justice. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. 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 applicant contends an upgrade would allow educational benefits through the GI Bill and other veterans 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 an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends maintaining employment since 2018; graduating from the police academy and working as a corrections officer; owning a masonry business and a home; being an outstanding parent; and developing a great reputation in the community. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third-party statement provided with the application speak highly of the applicant. It recognizes the applicant's good conduct after leaving the Army. The applicant contends the applicant previous request for an upgrade was denied because the applicant did not provide the medical documents to the Board and the applicant's application was rejected without the Board considering the supplemental guidance and additional protections under 10 U.S.C., section 1553(d). The applicant's case will be considered under the applicable statutory authorities, policies, procedures, and/or other authoritative sources, wherein PTSD will be considered by the Board as possible mitigating factors. 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): N/A. b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): (counsel) 10. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. , the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD, Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found civilian medical documentation provided by the applicant, dated 5 Sep 2012, that establishes the presence of MDD during applicant's time in service. VA service connection for PTSD establishes it occurred during military 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 two mitigating BH conditions, PTSD and MDD. As there is a nexus between PTSD, MDD and use of illicit drugs to self-medicate symptoms, there is a nexus between the applicant's diagnosis of PTSD, MDD and the wrongful use of marijuana. (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 PTSD and MDD outweighed the basis for separation - wrongful use of marijuana - for the aforementioned reason. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention during proceedings, and voted to grant an upgrade based on the applicant's PTSD and MDD outweighing the applicant's drug abuse basis for separation. Thus, and upgrade of the characterization of service, narrative reason for separation, and RE code is warranted. (2) The applicant contends undiagnosed PTSD affected behavior which led to the discharge and the VA rated the applicant 50 percent disabled because of PTSD. The Board considered this contention during proceedings, and voted to grant an upgrade based on the applicant's PTSD and MDD outweighing the applicant's drug abuse basis for separation. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on PTSD and MDD outweighing the applicant's drug abuse basis for separation. (4) The applicant claims the offense leading to the discharge was minor, non-violent, and less severe in light of the current marijuana laws. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on PTSD and MDD outweighing the applicant's drug abuse basis for separation. (5) The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on PTSD and MDD outweighing the applicant's basis for separation. (6) The applicant contends good service, including a combat tour. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on PTSD and MDD outweighing the applicant's basis for separation. (7) The applicant contends an upgrade would allow educational benefits through the GI Bill and other veterans 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 (8) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (9) The applicant contends maintaining employment since 2018; graduating from the police academy and working as a corrections officer; owning a masonry business and a home; being an outstanding parent; and developing a great reputation in the community. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on PTSD and MDD outweighing the applicant's basis for separation. (10) The applicant contends the applicant's previous request for an upgrade was denied because the applicant did not provide the medical documents to the previous Board and the applicant's application was rejected without the Board considering the supplemental guidance and additional protections under 10 U.S.C., section 1553(d). The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on PTSD and MDD outweighing the applicant's basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD and MDD outweighing the basis for separation - wrongful use of marijuana. Thus, relief is warranted. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD and MDD outweighed the basis for separation - wrongful use of marijuana. 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 Board voted to change the RE code to RE-3. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 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 AR20220011568 1