1. Applicant's Name: a. Application Date: 19 June 2017 b. Date Received: 22 June 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, the discharge was improper and inequitable. Impropriety: The applicant never knowingly or willingly ingested a controlled substance. It was either placed in a beverage or in the cigarette the applicant was smoking at a party. Upon having no recollection of the events from the night prior and being very sick, the applicant immediately notified the chain of command. But it unknowingly created a chain of events, which led to discharge. Based on SHARP training, and believing that the applicant was drugged or poisoned, the applicant immediately notified the chain of command according to AR 600-85, paragraph 10-12(6). The applicant was never aware of any pending urinalysis at the time of reporting the incident to the chain of command, nor was the applicant escorted to a medical facility for testing. Instead, the applicant was told to go to the room and drink fluids. The applicant followed the Army protocol and AR 600-85. The applicant was commended by my squad leader for "'[d]oing the right thing by notifying the chain of command about the issue,'" as reflect in a counseling statement. According to AR 600-85, drug and alcohol test results are protected if the tested Soldier, "'[v]oluntarily submits to a DOD or Army rehabilitation program before the Soldier has received an order to submit for a lawful drug or alcohol test. Voluntary submission under AR 600-85, is defined as a Soldier communicating to a member of their chain of command that they desire to be entered into a rehabilitation program.'" However, 48 hours later, the applicant was required to submit to a "random" drug test, which came back positive. The applicant received an Article 15 punishment, and subsequently, was discharged. Prior to discharge, the Company Commander, CPT. L., told the applicant that it would be to the applicant's benefit to work undercover with CID, but without any information to give to the CID, declined. The discharge, based on evidence that was protected by AR 600-85, was unjustly used against the applicant and in the characterization of service. The applicant had a clean record of behavior and a history of good service to the country. Inequitable: The discharge was based on one isolated incident in 37 months of honorable service with no other adverse action. The record demonstrate accomplishments while in the service and that the applicant was a good Soldier. As a PFC, the applicant attended and won the Soldier-of-the-Month board, for both January and February 2015. The applicant placed third in the 3ID, 3HBCT, Soldier-of-the-Quarter Board. At 18 months' time-in-service, the applicant was promoted to the rank of Specialist with waiver. The applicant then attended the 2-69 AR Scout selection tryouts and was inducted into the 2-69 AR Infantry Scout Platoon, where the applicant served honorably for five months until the unit was deactivated, followed by serving as a team leader in the heavy weapons squad of Alpha company. It is clear the discharge was unfair due to the chain of commander not following multiple Army regulations. In a records review conducted at Arlington, VA on 13 February 2019, and by a 5-0 vote, the Board determined the characterization was improper based on the circumstances surrounding the discharge. The record shows the government introduced into the discharge packet the results of a biochemical test which was protected under the Limited Use Policy. The inclusion of the test administered as part of the applicant's voluntary admission into the Army Substance Abuse Program (ASAP) is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (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: 5 October 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 and 23 August 2016 (2) Basis for Separation: The applicant wrongfully used cocaine between 27 May 2016, and 1 June 2016. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 17 August 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 September 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 September 2013 / 4 years, 21 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 14 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 8 June 2016, indicates the specimen collected on 1 June 2016, on an "IU" (Inspection, Unit) basis, provided by the applicant, tested positive for Cocaine. Negative counseling statements for being recommended for an involuntary separation and testing positive for an illegal substance. CID report, dated 14 June 2016, indicates the applicant was the subject of an investigation for wrongful use of cocaine. CID memorandum, undated, to the commander informs that a member of the command was the subject of a criminal investigation by CID, and encourages to monitor the member's mental and physical health to mitigate any stress and minimize any harm. Report of Mental Status Evaluation, dated 14 June 2016, indicates the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. FG Article 15, dated 30 June 2016, for wrongfully using cocaine between 27 May 2016 and 1 June 2016. The punishment consisted of a reduction to E-1, forfeiture of $783 pay per month for two months (suspended), 45 days of extra duty and restriction, and an oral reprimand. Memorandum for the Commander, dated 6 September 2016, rendered by the Administrative and Civil Division for the Staff Judge Advocate, indicates that a review of the separation action regarding the applicant was found legally sufficient, and the applicant's use of illegal drugs constituted commission of a serious offense of AR 635-200, paragraph 14-12c(2). i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 19 June 2017; Defense Counsel (JA) memorandum, dated 22 August 2016; three separate Sworn Statements, dated 9 June 2016; counseling statement, dated 2 June 2016; Department of Navy, Navy Drug Screening Laboratory letter, dated 17 June 2016;and extracted copy of pages 49-50, and 69-72, AR 600-85. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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. Army Regulation 600-85, The Army Substance Abuse Program, paragraph 10-12 (Definition of the Limited Use Policy), specifically, paragraph 10-12a(6) stipulates that "[u]nless waived under the circumstances listed in paragraph 10-13d of this regulation, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy is limited to: ... drug or alcohol test results, if the Soldier voluntarily submits to a DOD or Army rehabilitation program before the Soldier has received an order to submit for a lawful drug or alcohol test. Voluntary submission includes Soldiers communicating to a member of their chain of command that they desire to be entered into a rehabilitation program. This limited use protection will not apply to test results, which indicate alcohol or other drug abuse occurring after the voluntary submission to the rehabilitation program. Examples: The unit commander has ordered a urinalysis on Monday for all members of the unit (an inspection under MRE 313). Before receiving an order (or having knowledge of a pending test) to appear for the urinalysis, a Soldier approaches the platoon sergeant, admits having used illegal drugs over the weekend, and indicates a desire to receive help. Later that day, the Soldier is ordered to and provides a specimen for the urinalysis, which results in a positive report for cocaine use. Those results are protected by the limited use policy unless there is some evidence that demonstrates the use reflected by the test occurred after the admission was made to the platoon sergeant. Later that week, the commander orders another unit inspection for the following Monday. The inspection is conducted properly under MRE 313, and the Soldier once again has a positive result for cocaine. These test results, as interpreted by an Army FTDTL expert, indicate the Soldier had used cocaine after admitting use to the platoon sergeant. This test result is not protected by the Limited Use Policy." 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. 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. 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 the incident of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. 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. The applicant's numerous contentions as bases for his claim that his discharge was unfair and improper were carefully considered. 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 was 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 and to change the narrative reason for his discharge. In consideration of the applicant's service accomplishments and quality of his service prior to these incidents, the Board can find that his accomplishments and complete period of service 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 applicant contends the incident that caused his discharge was the only one in his entire Army career. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 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. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 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 13 February 2019, and by a 5-0 vote, the Board determined the characterization was improper based on the circumstances surrounding the discharge. The record shows the government introduced into the discharge packet the results of a biochemical test which was protected under the Limited Use Policy. The inclusion of the test administered as part of the applicant's voluntary admission into the Army Substance Abuse Program (ASAP) is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable 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 AR20170010804 1