IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230005657 APPLICANT REQUESTS: in effect, upgrade of his under other than honorable conditions (UOTHC) discharge to honorable and change of his reentry code. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Army Review Boards Agency (ARBA) Letter * Congressional Letter * Privacy Agreement * Medical Documents FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he requests a discharge upgrade. His Constituent Privacy Agreement, dated 3 May 2023, shows he requested the status of his applications. He was told that his application was pending, and he would like a decision. In his requests to the Army Discharge Review Board (ADRB), the applicant stated depression and family issues affected his behavior, which led to the discharge. 3. The applicant enlisted in the Regular Army on 6 January 2009. His military occupational specialty was 92F (Petroleum Supply Specialist). 4. DD Form 2624 (Specimen Custody Document-Drug Testing), dated 24 February 2010, shows the applicant tested positive for Tetrahydrocannabinol (THC) (marijuana) during an inspection unit urinalysis conducted on 11 February 2010. 5. The applicant received numerous developmental counseling’s for various acts of misconduct between 22 March and 10 August 2010. 6. The applicant was absent without leave (AWOL) on: * 25 March 2010 and present for duty (PDY) on 30 March 2010 * AWOL on 8 April 2010 and PDY on 12 April 2010 * AWOL on 26 April 2010 and PDY 5 May 2010 * AWOL 10 May 2010 and PDY on 12 May 2010 7. DD Form 2624, dated 12 May 2010, shows the applicant tested positive for THC during a urinalysis testing conducted on 5 May 2010. 8. The applicant was AWOL on 17 June 2010 and PDY on 1 July 2010. 9. Court-martial charges were preferred against the applicant on 12 August 2010 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with: * AWOL from: on or about 25 March 2010 to on or about 30 March 2010 on or about 8 April 2010 to on or about 12 April 2010 on or about 26 April 2010 to on or about 5 May 2010 on or about 10 May 2010 to on or about 12 May 2010 on or about 17 June 2010 to on or about 1 July 2010 * failed to go at the time prescribed to appointed place of duty: on or about 17 March 2010, 22 March 2010, 9 April 2010, 19 April 2010, 26 July 2010, 10 August 2010, and 12 August 2010 * wrongful use of marijuana between on or about 5 April 2010 and 5 May 2010; and between on or about 11 January 2010 and 11 February 2010 * failure to obey a lawful order between on or about 7 August 2010 and 8 August 2010 10. A Confinement Order, dated 10 August 2010, indicates the applicant’s commander directed the applicant to serve pretrial confinement for 12 charges of the UCMJ. 11. The Rights of Pretrial Confinee, dated 12 August 2010, shows the applicant was notified of the rights and reason for being placed in pretrial confinement. 12. Offer to Plead Guilty, dated 18 August 2010, reflects the applicant offered to plead guilty of all specifications provided the case was referred to a summary court-martial. The applicant understood he was being considered for administrative separation under Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, and as part of the offer, agreed to unconditionally waive the right to an administrative separation board even if considered for an UOTHC discharge. 13. A Report of Mental Status Evaluation, dated 23 August 2010, shows the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible met retention standards. The applicant denied suicidal and homicidal ideation. The traumatic brain injury indicated negative results, no referral necessary and the post-traumatic stress disorder screen was unremarkable. The evaluation did not reveal any mental health disorder so severe as to preclude the applicant from participating in the discharge process and he was psychiatrically cleared. 14. The applicant's immediate commander notified the applicant on 26 August 2010 of his intent to initiate separation actions against him under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct-commission of a serious offense. The reason for the proposed action was he had tested positive for marijuana twice, been AWOL five times, disobeyed orders and failed to be at his appointed place of duty numerous times. The commander recommended an UOTHC characterization of service. The applicant acknowledged receipt of the notification on the same date. 15. The applicant was advised of the rights available to him (on his offer to plead guilty). He consulted with counsel and acknowledged that he was advised of the basis for the contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. a. He elected not to submit statements in his own behalf. b. He understood he may expect to encounter substantial prejudice in civilian life, he further understood he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he understood that he may expect to encounter substantial prejudice in civilian life. 16. The applicant's commander formally recommended the applicant's separation from service under the provisions of AR 635-200, Chapter 14, prior to his expiration term of service. 17. The separation authority approved the recommended discharge on 9 September 2010 and directed the applicant’s reduction to private/E-1 and a characterization of service of UOTHC. 18. The applicant was discharged on 17 September 2010. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). He completed 1 year, 7 months, and 8 days of net active service. He had lost time from 25 March 2010 to 29 March 2010, 8 April 2010 to 11 April 2010, 26 April 2010 to 4 May 2010, 10 May 2010 to 11 May 2010 and 17 June 2010 to 30 June 2010. His DD Form 214 further shows in: * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): National Defense Service Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon * Block 24 (Character of Service) - UOTHC * Block 25 (Separation Authority) - AR 635-200, Para 14-12c (2) * Block 26 (Separation Code) - JKK * Block 27 (Reentry Code) - 4 * Block 28 Narrative Reason for Separation) - Misconduct (Drug Abuse) 19. The applicant provides: a. A Privacy Agreement, dated 3 May 2023, shows the applicant sought congressional assistance for a response to his request for discharge upgrade. b. An Army Review Boards Agency (ARBA) letter, dated 12 May 2023, shows the application identified as AR20210003081 was considered and denied by the Army Discharge Review Board (ADRB). The applicant was sent the record of proceedings explaining the Board’s decision. The applicant has an open applicant identified as AR20230005657. His application was pending review by the staff of the ADRB. c. Medical documents that show diagnoses of cocaine use disorder, mild, major depressive disorder, recurrent episode, moderate and cannabis use disorder, mild. 20. Soldiers are subject to separation under Chapter 14, for misconduct -commission of a serious offense. A discharge UOTHC is normally appropriate under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 21. On 13 November 2018, the ADRB determined the applicant was properly and equitably discharged and denied his request for a change in the characterization of service and/or narrative reason of his discharge. 22. On 9 April 2021, ARBA notified the applicant that the ADRB determined the applicant was properly and equitably discharged and denied his request for a change in the characterization of service and/or narrative reason of his discharge. 23. On 26 April 2021, the ADRB determined the applicant was properly and equitably discharged. However, the ADRB granted a portion of his request and reissued a DD Form 214 per ADRB Proceedings AR20210003081 on 1 November 2022. 24. On 10 June 2022, the ARBA notified the applicant that the ADRB determined the applicant was properly and equitably discharged and denied his request for a change in the characterization of service and/or narrative reason of his discharge. However, the Board determined that his DD Form 214 required certain administrative corrections. 25. On 1 November 2022, the DD Form 214 was reissued to show in pertinent part: * Block 25 (Separation Authority) - AR 635-200 * Block 26 (Separation Code) - JKQ * Block 27 (Reentry Code) - 4 * Block 28 Narrative Reason for Separation) - Misconduct (Serious Offense) 26. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 27. MEDICAL REVIEW: a. Background: The applicant is requesting, in effect, upgrade of his under other than honorable conditions (UOTHC) discharge to honorable and change of his reentry code. The applicant had previously asserted that depression and family issues had affected his behavior which led to his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * He enlisted in the Regular Army on 6 January 2009. * The applicant received numerous developmental counselings for various acts of misconduct between 22 March and 10 August 2010. * Court-martial charges were preferred against the applicant on 12 August 2010. He was charged with: * AWOL from: * on or about 25 March 2010 to on or about 30 March 2010 * on or about 8 April 2010 to on or about 12 April 2010 * on or about 26 April 2010 to on or about 5 May 2010 * on or about 10 May 2010 to on or about 12 May 2010 * on or about 17 June 2010 to on or about 1 July 2010 * Failed to go at the time prescribed to appointed place of duty: * on or about 17 March 2010, 22 March 2010, 9 April 2010, 19 April 2010, 26 July 2010, 10 August 2010, and 12 August 2010 * Wrongful use of marijuana between on or about 5 April 2010 and 5 May 2010; and between on or about 11 January 2010 and 11 February 2010 * Failure to obey a lawful order between on or about 7 August 2010 and 8 August 2010 * A Confinement Order, dated 10 August 2010, indicates the applicant’s commander directed the applicant to serve pretrial confinement for 12 charges of the UCMJ. * The applicant's immediate commander notified the applicant on 26 August 2010 of his intent to initiate separation actions against him under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct-commission of a serious offense. The reason for the proposed action was he had tested positive for marijuana twice, been AWOL five times, disobeyed orders and failed to be at his appointed place of duty numerous times. The commander recommended an UOTHC characterization of service. The applicant acknowledged receipt of the notification on the same date. * The applicant was discharged on 17 September 2010 with an UOTHC characterization of service. * The applicant has had numerous applications to ARBA with determinations. Please see record for full account. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included his ABCMR Record of Proceedings (ROP), DD Form 214, his service and separation records, as well as an Army Review Board Agency (ARBA) letter, congressional letter, privacy agreement, and medical documents. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. Of note, the applicant’s DD Form 149 was not submitted and/or available for review for this application though a previous DD Form 298 was in his supporting documents. d. The applicant’s supporting documents reflect that he requested a discharge upgrade and that it’s been shown as pending for some time. In his requests to the Army Discharge Review Board (ADRB), the applicant stated depression and family issues affected his behavior, which led to the discharge. e. The applicant’s engagement with health care, to include mental health, can be found in his electronic health record (EHR). The applicant’s EHR shows the applicant first engaged in mental health through the Army Substance Abuse Program (ASAP) on 31 March 2010 (after the positive UA). He was assessed, diagnosed with cannabis intoxication, and was not recommended for full enrollment, but instead to attend the ADAPT class. There is no evidence of follow up care. The applicant was seen on 23 March 2010 for his separation mental status exam. His presentation was unremarkable, with a normal mood. At the time of the assessment, the applicant denied any history of mental health treatment and he denied any current concerns with mood, anxiety, panic, PTSD, anger or aggression. His record is void of any other mental health engagement or diagnosis. The applicant’s noted stressors were the legal problems (leading to the assessment and discharge) as well as marital issues. The applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, met medical retention requirements per AR 40-501 chapter 3, was not found to have any mental health disorder so severe as to preclude him from participating in the chapter process, and was cleared to participate in administrative proceedings deemed necessary by command. His supporting documents and service records contained minimal relevant medical from his time in service. The applicant denied any mental health concerns during his enlistment medical exam (5 December 2008). His separation physical was not present in his record. However, a physical was conducted upon confinement, on 12 August 2010. In this record, the applicant noted depression though no official diagnosis was given. f. Per the applicant’s VA EHR, he is 0% service connected for tinnitus, but holds no service connection for any mental health conditions. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits, though has been seen at the VA under humanitarian emergency health care. The applicant has been engaged in care at the VA since 2019, and with mental health care since 2021. He has been diagnosed with major depressive disorder (MDD; recurrent – moderate, recurrent – severe – without psychotic symptoms), depression – unspecified, anxiety disorder – unspecified, problems related to unspecified psychosocial stressors, adjustment disorder with depressed mood, and adjustment disorder – unspecified. He has engaged in some individual care and medication management. He noted during an encounter in 2021 that he’d previously been engaged in mental health care through Centerstone, where he was reportedly diagnosed with severe depression around 2018. Through review of Joint Legacy Viewing, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health treatment nor diagnoses. g. His supporting documents contained medical records which showed that the applicant has been diagnosed with cocaine use disorder – mild (2019), major depressive disorder - recurrent episode – moderate (2018; with anxious affect in 2017) and cannabis use disorder, mild (2019). He has engaged in individual therapy, group therapy (focused on substance abuse/dependence), medication management, and case management. In an encounter from 2019, he asserts first noticing symptoms of depression around 14 years old. In an encounter from 16 July 2020, he asserted having developed depression during his time in the service, and even reported engaging in care. However, his medical records from this time in service dispute this. That said, during previous applications to ARBA, he has included statements of support (from parents/family) with the statements supporting his assertion that he experienced a “mental breakdown” during his time in service and was reportedly unsupported and mistreated. h. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is minimal and conflicting evidence regarding whether or not a potentially mitigating condition was present during his time in service. However, per Liberal Consideration guidance, his contention warrants the board’s consideration. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes, applicant asserts other mental health (depression and family issues) as a mitigating factor. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts a potentially mitigating condition occurred during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts other mental health, more specifically depression and family issues, are related to his request for upgrade. There are several important factors in this opine. First, the only condition the applicant was diagnosed with was cannabis intoxication. This diagnosis does not rise to the level of a substance use disorder. And even if his use met those criteria, currently – a substance use disorder as a standalone condition, is not considered a mitigating factor. Second, there is no evidence the applicant was diagnosed with any other mental health condition during his time in service. He actively denied mental health concerns during assessments that occurred near the time of misconduct and discharge. During his confinement physical he noted depression, but this was after the misconduct had occurred and he was experiencing the consequences. That said, later mental health care records (2017 and on) indicate the applicant has struggled with depression since his teenage years. The applicant has also consistently reported depression and a “breakdown” during his time in service. In addition, he has statements of support from family members who indicate observing the mental health change he experienced during his time in service. Third, per the applicant’s self-report in his EHR and provided medical records, he was not diagnosed with depression until 2017/2018. This is approximately 7-8 years after his discharge. In addition, the applicant is not service connected for any mental health conditions. Fifth and of note, the applicant’s misconduct included behavior consistent with the natural history and sequelae of depression (self-medication and/or avoidance in use of THC; avoidance through going AWOL and failure to report). There is a nexus between a majority of the behaviors he was counseled for/charged with, and the misconduct that led to his discharge. Hence, given Liberal consideration and the presence of some, though conflicting, evidence of a potentially mitigating condition this advisor would recommend at most, partial mitigation. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review the Board noted the advising official finding partial mitigation for the applicant’s misconduct. The opine indicated there is a nexus between a majority of the behaviors he was counseled for/charged with, and the misconduct that led to his discharge. However, there is no evidence the applicant was diagnosed with any other mental health condition during his time in service. He actively denied mental health concerns during assessments that occurred near the time of misconduct and discharge. 2. The Board noted, the applicant provided no post service achievements or character letters of support for the Board to weigh a clemency determination. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. Furthermore, the Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 7 months, and 8 days of net active service. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity; the reentry code was correctly provided at his time of separation. The Board agreed the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING ;X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. b. 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. c. Chapter 14 of this regulation established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A under other than honorable conditions discharge was normally considered appropriate. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. d. 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. 4. AR 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of AR 635-200, Chapter 14, misconduct (serious offense). 5. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 6. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; traumatic brain injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005657 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1