1. Applicant's Name: a. Application Date: 13 September 2016 b. Date Received: 3 October 2016 c. Counsel: 2. RE1UEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge based on reason and equity. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant accepted responsibility for the actions that led to his discharge. However, his chain of command were unaware of the factors, extraordinary circumstances that were beyond his control, causing his misconduct. While the applicant excelled in basic training, he began struggling at the advanced individual training-he was undergoing extreme mental and emotional turmoil. His troubling childhood, family issues, and emotional issues were barriers that ultimately were too much to handle during his military training. He went AWOL from training, and remained absent until he surrendered to military authorities. He had also admitted to smoking marijuana during the period of his AWOL. The applicant, in his self-authored statement, detailed the events and circumstances surrounding his discharge, and his post-service accomplishments. He requests for an entry level separation because he served less than six months, that he was still in training, and that he was not mentally matured at his enlistment. He wishes to rid the negative military stigma he created at age 19. He has been drug and alcohol free since February 2010, and had not been in trouble with the law since 2006. The counsel stated the applicant rebounded and is now goal oriented and dedicated to bettering himself. He has since earned three associate's degrees with a 3.503 GPA and on the Dean's list, and is a member of the Phi Theta Kappa Honor Society. He will earn his bachelor's degree in 2018, and has a goal of attending law school. Per the Board's Medical Officer, based on the information available for review at the time, the applicant did not have a medical or behavioral health condition that was mitigating for the reasons leading to an early separation. In summary, although SM had a behavioral health history, there is no indication that his marijuana use was to self-medicate symptoms. In a records review conducted at Arlington, VA on 6 December 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (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: 17 October 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 October 2007 (2) Basis for Separation: The applicant wrongfully used marijuana and he was AWOL from 14 July 2007 to 13 August 2007. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 October 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 October 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 March 2007 / 4 years b. Age at Enlistment / Education / GT Score: 19 / GED / 108 c. Highest Grade Achieved / MOS / Total Service: E-3 / None / 5 months, 25 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 22 August 2007, shows the applicant tested positive for Marijuana during a competence for duty or command directed (CO) urinalysis testing conducted on 13 August 2007. MP Report, dated 15 July 2007, indicates the applicant was the subject of an investigation for being AWOL and subsequently returning to his unit. FG Article 15, dated 28 August 2007, for being AWOL on 14 July 2007, and remained absent until 13 August 2007. The punishment consisted of a reduction to E-2, forfeiture of $729 pay per month for two months, 45 days of extra duty and restriction, and an oral reprimand. Negative counseling statements for the command receiving a positive urinalysis report; violating Article 112a, UCMJ, by wrongfully using an uncontrolled and illegal substance known as marijuana; being recommended for an involuntary separation; being AWOL; failing to obey an order or regulation; and disobeying a commissioned officer. i. Lost Time / Mode of Return: 31 days (AWOL: 14 July 2007 to 13 August 2007) / Applicant returned to his unit. j. Diagnosed PTSD / TBI / Behavioral Health: Two separate Clinical Psychologist letters to the unit commander, dated 4 and 18 September 2007, recommended the applicant's separation under Chapter 14 or Chapter 15 due to his intent to live a gay lifestyle which could potentially pose problems within the military environment; that his AWOL was directly connected to his intent to living an openly gay lifestyle; that he did not have a disqualifying mental disorder; that he was seen in individual sessions with by Psychology and Psychiatry, and attended a Life Skills class; and that he was cleared to participate in any and all actions in respect to the discharge process. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 13 September 2016, with attorney-authored brief; DD Form 214; ERB; MP Report, dated 18 July 2007; two counseling statements, dated 13 August 2007, and 5 September 2007; Article 15, dated 28 August 2007; letter, dated 4 September 2007; urinalysis results report, dated 22 August 2007; letter, dated 18 September 2007; separation initiation memorandum, dated 3 October 2007; commander's report, dated 3 October 2007; battalion commander's recommendation, dated 9 October 2007; separation authority's decision, dated 12 October 2007; applicant's self-authored statement; news article, dated 13 March 2016; list of earned credits; Phi Theta Kappa certificate; and five character reference statements. 6. POST SERVICE ACCOMPLISHMENTS: The counsel, on behalf of the applicant, states in effect, that the applicant rebounded and is now goal oriented and dedicated to bettering himself. He has since earned three associate's degrees with a 3.503 GPA and on the Dean's list, and is a member of the Phi Theta Kappa Honor Society. He would be earning his bachelor's degree in 2018, with a goal of attending law school and becoming a juvenile court prosecutor. 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. Paragraph 3-9 contains guidance on entry level separations. It states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service. Chapter 11 of AR 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status (ELS). An uncharacterized service description is normally granted to Soldiers separating under this chapter. A general discharge (GD) under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. Chapter 15, no longer in effect, a governing provision for the separation of members who actively engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct, had been rescinded. Current law and regulations now allow Soldiers who are homosexual to serve openly. Former Soldiers who were discharged under the old policy may request a change to the reason for their separation invoking the current standard. The Board considers any aggravating factors and in their absence, will change the narrative reason for the discharge to Secretarial Authority. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge based on reason and equity. The applicant's available 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. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence place in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, he knowingly risked a military career and diminished the quality of service below that meriting an honorable discharge. The applicant's contentions regarding his behavioral health issues involving suicidal ideation that related to his fear of being discovered and the anticipated danger to follow due to his preference for same sex behavior which he indicated he did not share with any one at his unit, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. In consideration of the applicant's post-service accomplishments, the Board can find that his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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 applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635- 5-1 for a discharge under Chapter 14, paragraph 14-12c(2) is "Misconduct (Drug Abuse)," and the separation code is JKK. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Regarding his request for an entry-level-status discharge, Army Regulation 635-200 provides in pertinent part, that a Soldier is in entry-level status for the first 180 days of continuous active duty. The purpose of the entry-level status is to provide the Soldier a probationary period. Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status. It also provides that, in cases of serious misconduct, a Soldier's service may be coded other than uncharacterized as it was in this case. Based on the foregoing, 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 6 December 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a new DD-214/Issue new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20170003848 1