1. Applicant's Name: a. Application Date: 28 March 2017 b. Date Received: 10 July 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, the discharge was unfair at the time. The discharge was procedurally defective. The discharge is not fair now. The discharge should have been an MEB. The chronic pain affected the applicant's thinking and decision making process. The applicant did not use marijuana and could not have tested positive. The applicant did not receive the same opportunity for a second chance to get honorably like other Soldiers. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of Depression, Mood Disorder, Alcohol Disorder, Cannabis Disorder, Other Recurrent Depressive Disorder, and Unspecified Depressive Disorder. The applicant is 50% service-connected for Mood Disorder from the VA. The VA has also diagnosed the applicant with Unspecified Depressive Disorder. In summary, due to the basis of separation not being in file, there is insufficient evidence to determine if the applicant's BH diagnoses are mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 8 April 2020, 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: 23 May 2016 c. Separation Facts: No (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: On 4 May 2016 / the separation authority reviewed both the administrative separation file and the medical evaluation board results pertaining to applicant, he directed the processing of his case for administrative separation under the provisions of Army Regulation 635-200, Chapter 14-12c(2). He found that the applicant's medical conditions were not a direct or substantial contributing cause of the conduct that led to his recommended administrative separation. He also found that the applicant's case did not warrant disability processing instead of administrative separation. Therefore, he directed the separation of the applicant from the U.S. Army with a General (Under Honorable Conditions) characterization of service. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 January 2014 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 21 years / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 3 months, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant submitted a positive urinalysis test coded IU (Inspection Unit), dated 4 January 2016, for THC. The applicant also submitted a negative counseling statement dated, 21 January 2016, for a positive urinalysis test. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Informal Physical Evaluation Board (PEB) Proceedings, dated 5 February 2016, reflect the applicant was fit for the following conditions, unspecified depressive disorder. VA Decision Review Officer Reconsideration, dated 8 March 2016, reflects a service connected evaluation and was granted a rating of 10 percent disabling for an unspecified depressive disorder (also claimed as insomnia and fatigue). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); DD Form 214; legal brief (nine pages); request for counsel (two pages); applicant's personal affidavit; memorandum for record, administrative separation; support statement; applicant's statement; support statements; Chapter 14 discharge documents (29 pages); Informal PEB Proceedings (four pages); VA Decision Review Officer Reconsideration; Air Force Drug Testing Study (six pages); personal letters of support; supporting documents as listed in the application. Additional documents: DD Form 149 (two pages), dated 28 March 2017, C. Nicole Cooper, Counsel; DD Form 214, MEB / PEB Records are listed as supporting documents. 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. 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 14-12c(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. 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 the characterization of service from general (under honorable conditions) to honorable a change to the narrative reason for separation. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's digital signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c(2), by reason of misconduct (drug abuse), with a characterization of service of general (under honorable conditions). Barring evidence to the contrary, the presumption of government regularity prevails as all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the DD Form 214 shows a Separation Code of JKK (i.e., misconduct (drug abuse), with a reentry eligibility (RE) code of 4. The applicant requests a change to the narrative reason for separation. 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). The regulation further stipulates that no deviation is authorized. The applicant through counsel seeks relief contending, his discharge was unfair at the time; his discharge was procedurally defective; his discharge is not fair now; and he did not use marijuana and could not have tested positive. 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 these contentions. There is no evidence in the record, nor has the applicant produced any evidence to support the contentions that he was unjustly discharged. The applicant further contends, his discharge should have been an MEB. Army Regulation 635- 200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant additionally contends, his chronic pain affected his thinking and decision making process. The available service record does not support the applicant's contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the available record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. Lastly, the applicant contends, he did not receive the same opportunity for a second chance to get honorably like other Soldiers. The method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. If the applicant desires a personal appearance hearing, it is his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. The third party statements provided with the application speak highly of the applicant. However, the persons providing the character reference statements were in and some were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. Based on the available record, the discharge appears consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 8 April 2020, 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 a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code 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 AR20170010362 4