1. Applicant's Name: a. Application Date: 10 November 2015 b. Date Received: 4 January 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under other than honorable conditions) discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, his documentary evidence shows the alleged use was an accidental use because the Nano-grams were very low, which further indicates that he was not abusing any drugs. An upgrade of his reentry code would allow him to receive his VA benefits and an opportunity to reenter military service. He was discharged during the period of downsizing and there was zero tolerance. Per the Board's Medical Officer, based on the information available for review at the time, the applicant does not have a mitigating behavioral health condition for the offenses which led to his discharge from the Army. Both the electronic military medical record and the electronic VA medical record were reviewed. In a records review conducted at Arlington, VA on 10 March 2017, and by a 5-0 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and changes to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. (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: 22 September 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 August 2014 (2) Basis for Separation: The applicant wrongfully used oxycodone and oxymorphone, Schedule II controlled substances (10 March 2014). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 August 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 August 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 February 2012 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19D10, Cavalry Scout / 2 years, 7 months, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (23 August 2012 to 15 May 2013) f. Awards and Decorations: ARCOM, NDSM, ACM-CS, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 21 March 2014, reflects the applicant tested positive for Oxycodone and Oxymorphone during an Inspection Random (IR) urinalysis testing conducted on 10 March 2014. DAMIS Report for specimen collection, dated 10 March 2014, indicates an MRO evaluation with comments that the physician, Dr. E, was unable to contact the applicant's command to inform the commander that UCMJ action should not be initiated on the applicant. Applicant's out/inpatient medication profile list, lists medication from 4 April 2014 to 27 August 2013. Negative counseling statement for testing positive on a urinalysis and being command- referred into ASAP. Memorandum, dated 28 April 2014, Subject: Medical Review Officer (MRO) Review, shows the MRO rendered an opinion in this case that it was likely an incidental or accidental-use case. Report of Mental Status Evaluation, dated 16 July 2014, indicates the applicant was cleared from behavioral health for administrative action deemed appropriate by his command. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and the applicant's separation file. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. 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. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), Misconduct (Drug Abuse). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms that the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and marred the quality of his service. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty (AD). The applicant contends the discharge was unjust because his documentary evidence shows the alleged use was an accidental use because the Nano-grams were very low, which further indicates that he was not abusing any drugs. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge. The applicant has expressed his desire for an opportunity to reenter military service and to receive his veterans' benefits. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. Further, 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 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. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 10 March 2017, and by a 5-0 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and changes to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, Chapter 14-12a e. Change SPD/RE Code to: Change SPD to JKN / Change to RE code to 3 f. Restore Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160002326 1