1. Applicant's Name: a. Application Date: 20 April 2023 b. Date Received: 24 April 2023 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 through counsel, requests an upgrade to honorable and changes to the SPD code to a code corresponding with "Secretarial Authority," and narrative reason to "Secretarial Authority". b. The applicant's counsel seeks relief contending, in effect, the applicant's characterization of discharge is unfair and inequitable. In this case, the applicant's service has met the standards of performance of duty to be upgraded to an honorable discharge. (1) The applicant received the applicant's first promotion coming out of advanced individual training (AIT) as the applicant graduated with the best certification results in the training platoon, and during service the applicant received a coin for diligence and performance, a combat action badge, and attempted to learn the Pashtu language to communicate with the Afghanistan people. (2) The forward observers the applicant was instructed to shadow used synthetic drugs to smoke while off-duty. The applicant lost morale, which impacted the quality of the applicant's performance. The applicant's depression led to continuously getting counseled. The applicant's morale fell so low, the applicant told the chain of command the applicant desired to leave the service. This was around the time that the soldiers using the synthetic drugs were revealed and punished. The applicant was questioned about their knowledge of fellow soldiers' drug use. The applicant, as a young 19-year-old, did not want to "rat" them out. As a result, the applicant was given the same punishment (Article 15), however within six months regained rank that was lost. (3) The applicant did have a condition that may excuse or mitigate the applicant's discharge and the condition existed during the applicant's military service. That is, the applicant was diagnosed with PTSD and the applicant's PTSD condition is connected to service while in the Army (see enclosure 2). The applicant's actions can be linked to the applicant's condition. The applicant became depressed after receiving an Article 15 (nonjudicial punishment) for not being a witness against fellow soldiers. At a later date the applicant used hash with a security guard when the applicant was off duty and when questioned admitted to the use. (4) The applicant has been diagnosed with PTSD by the VA, for which the applicant received a 70% rating. The applicant would like the Board to know that receiving an upgrade would allow the applicant to seek employment with better pay and benefits through a higher education. Furthermore, an upgrade will help provide for a future family. (5) Counsel further details the contentions in a 10-page allied legal brief provided with the application. c. Board Type and Decision: In a telephonic personal appearance hearing conducted on 11 December 2023, and by a 5-0 vote, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code remains RE-1. Please see Section 10 of this document for more detail regarding the Board's decision. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-1 / General (Under Honorable Conditions) b. Date of Discharge: 28 April 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 February 2011 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used hashish. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 21 February 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 28 February 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 January 2009 / 4 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13F10, Fire Support Specialist / 2 years, 3 months, and 2 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: SWA / Afghanistan (24 April 2010 - 18 March 2011) f. Awards and Decorations: ACM-CS, AAM, NDSM, GWTSM, ASR, NATOMDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) Eleven developmental counseling forms for various acts of misconduct. (a) Developmental Counseling Form, 28 October 2009, shows the applicant received Record of Proceedings under Article 15, Uniformed Code of Military Justice (UCMJ) for an unknown reason. (b) Developmental Counseling Form, 25 November 2009, shows the applicant received extra duty and restriction for 45 days. (2) Two DA Forms 268 (Report to Suspend Favorable Personnel Actions (Flag)), 6 January 2011, shows the applicant was flagged for adverse action (AA) and involuntary separation/field initiated (BA), effective 6 January 2011. (3) Report of Behavioral Health Evaluation (BHE), 28 January 2011, shows the applicant was mentally responsible with a clear thinking process and had the mental capacity to understand and participate in the proceedings. The applicant was psychiatrically cleared for any administrative actions deemed appropriate by command. The applicant met medical retention requirements of AR 40-501. The applicant was screened for PTSD and mild TBI with negative results. (4) FG Article 15, 2 February 2011, while deployed to Afghanistan, wrongfully used hashish between on or about 1 July 2011 and on or about 31 July 2011. The punishment consisted of a reduction from E-3 to E-1; forfeiture of $733.00 pay per month for 2 months; and extra duty for 45 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: VA disability rating decision, date unknown, showing the applicant was rated 70 percent disability for unspecified trauma and stress related disorder (previously denied as PTSD with reported symptoms of anxiety, depression, and sleep problems). (2) AMHRR Listed: BHE as described in previous paragraph 4h. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; VA Rating Decision; Legal Brief. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c (2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14- 12a or 14-12b as appropriate. (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, 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) 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. a. The applicant requests an upgrade to honorable and changes to the SPD code to a code corresponding with "Secretarial Authority," and narrative reason to "Secretarial Authority". The applicant's AMHRR, the issues, and documents submitted with the application were carefully reviewed. b. The applicant's DD Form 214 shows 2 years, 3 months, and 2 days c. The applicant through counsel, requests the narrative reason for the discharge to be changed to "Secretarial Authority". 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. d. The applicant through counsel, requests the SPD code be changed to a code corresponding with "Secretarial Authority." The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c(2), is "JKK." e. The applicant through counsel, contends, in effect, the forward observers the applicant was instructed to shadow used synthetic drugs to smoke while off-duty. Because the applicant, as a young 19-year-old, did not want to "rat" them out, the applicant was given the same punishment (Article 15) which impacted the applicant's morale and quality of performance. The applicant's AMHRR is void of this Record of Proceedings under Article 15, UCMJ, however, two counseling's, 28 October and 25 November 2009, shows punishment received. f. The applicant through counsel, contends, in effect, the applicant did have a condition that may excuse or mitigate the applicant's discharge and the condition existed during the applicant's military service because the applicant was diagnosed with PTSD and the applicant's PTSD condition is connected to service while in the Army (see enclosure 2). The applicant's counsel provided a VA disability rating decision, date unknown, showing the applicant was rated 70 percent disability for unspecified trauma and stress related disorder (previously denied as PTSD with reported symptoms of anxiety, depression, and sleep problems). g. The applicant through counsel, contends, in effect, the applicant's actions can be linked to the applicant's condition because the applicant became depressed after receiving an Article 15 (nonjudicial punishment) for not being a witness against fellow soldiers. The applicant's counsel provided a VA disability rating decision, date unknown, showing depression and other symptoms. h. Counsel states the applicant received the applicant's first promotion coming out of AIT as the applicant graduated with the best certification results in the training platoon, and during service the applicant received a coin for diligence and performance, a combat action badge, and attempted to learn the Pashtu language to communicate with the Afghanistan people. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. i. Counsel states the applicant would like the Board to know that receiving an upgrade would allow the applicant to seek employment with better pay and benefits through a higher education. Furthermore, an upgrade will help provide for a future family. j. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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): None c. Counsel: 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 diagnosis: the applicant is service connected for PTSD. (2) Did the condition exist or experience occur during military service? Yes. The applicant asserts in-service PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and substance use, the basis is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the PTSD diagnosis outweighed the basis of separation. b. Prior Decisions Cited: None c. Response to Contention(s): (1) The applicant through counsel, contends, in effect, the forward observers the applicant was instructed to shadow used synthetic drugs to smoke while off-duty. Because the applicant, as a young 19-year-old, did not want to "rat" them out, the applicant was given the same punishment (Article 15) which impacted the applicant's morale and quality of performance. The Board considered this contention non-persuasive during its deliberations. (2) The applicant through counsel, contends, in effect, the applicant did have a condition that may excuse or mitigate the applicant's discharge and the condition existed during the applicant's military service because the applicant was diagnosed with PTSD and the applicant's PTSD condition is connected to service while in the Army (see enclosure 2). The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's wrongful drug use charges. (3) The applicant through counsel, contends, in effect, the applicant's actions can be linked to the applicant's condition because the applicant became depressed after receiving an Article 15 (nonjudicial punishment) for not being a witness against fellow soldiers. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD fully outweighing the applicant's drug abuse basis for separation. d. The Board determined that the discharge is inequitable and therefore voted to grant relief in the form of an upgrade of the characterization of service to honorable, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code remains RE-1. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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. e. Rationale for Decision: (1) The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board found sufficient evidence of in-service mitigating factors (Quality, Combat) and concurred with the conclusion of the medical advising official that the applicant's PTSD does mitigate the applicant's wrongful use of hashish. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. (2) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigated the applicant's misconduct drug abuse. Thus, the prior characterization is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 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: No change e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20230005268 1