1. Applicant's Name: a. Application Date: 22 February 2018 b. Date Received: 6 March 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and a change to narrative reason for discharge and reentry eligibility (RE) code from 4 to a 2 or 3. The applicant seeks relief contending, in effect, that although the DD Form 214 shows abuse of drugs, the applicant disagrees because the offense was a onetime isolated incident. The applicant has not used any drugs which is a fact and can be attested to by any past professional references. The applicant believes the separation code and decision were harsh and unreasonable. The applicant was an upstanding citizen and post term of service has risen to heights of public office and prestige. In a personal appearance hearing conducted at Arlington, VA on 28 January 2019, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the post-service accomplishments and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 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: 28 October 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 October 2009 (2) Basis for Separation: The applicant was informed of the following reason: misconduct-abuse of illegal drugs on 20 August 2009 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 October 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 October 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 April 2009 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-1 / 11B10, Infantryman / 6 months, 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 18 August 2009, which makes reference to the applicant being a subject of investigation for possession of marijuana. DD Form 2624 (Specimen Custody Document-Drug Testing), dated 26 August 2009, reflects the applicant tested positive for THC 62 during a Competence for Duty/Command Direct / Fitness for Duty (CO) urinalysis testing conducted on 20 August 2009. FG Article 15, dated 23 September 2009, for wrongfully possessing some quality of marijuana on 18 August 2009 and wrongfully using marijuana between 20 July 2009 and 20 August 2009. The punishment consisted of forfeiture of $699 pay per month for two months, and extra duty and restriction for 45 days. Counseling statement for the wrongful use of a controlled substance on 18 August 2009. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 30 September 2009, which shows the applicant was diagnosed with an Axis I for cannabis abuse. It was also noted that he was mentally responsible, able to distinguish right from wrong, and adhere to the right. He had the mental capacity to understand and participate in administrative or legal proceedings. He was psychiatrically cleared for any administrative action deemed appropriated by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letters of commendations, and certificates of achievements and awards. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends that in May of 2018 he was to graduate from Emerson College with a BS in Political Science, and would move on to Harvard University to study Law. He was working for a school as a 4th and 5th grade mathematics teacher and for a foster home group. His political and educational career is leading him towards public officer in the future which can be traced from his past professional and education achievements. 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, 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 his general (under honorable conditions) discharge to honorable and a change to his narrative reason for discharge and reentry eligibility (RE) code from 4 to a 2 or 3. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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. Furthermore, by violating the Army's policy not to possess or use illegal drugs, the applicant compromised the trust and confidence placed 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, the applicant knowingly risked a military career and diminished the quality of his service below that meriting a general (under honorable conditions) discharge. 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. It should be noted the applicant's service record contains a DD Form 2624 (Specimen Custody Document for Drug Testing) that shows the urinalysis test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty." The Limited Use Policy applies to this test basis, per AR 600-85. However, evidence in the record shows the applicant was tested on 20 August 2009, two days after being observed by SSG Weiland smoking what he believed to be a marijuana cigarette on 18 August 2009; MPI (C) responded and tested the substance, which tested positive for THC. This would have given the unit commander probable cause to direct the urinalysis. In view of the aforementioned, it appears the CO code used on the DD Form 2624 was in all likelihood incorrect and should have been coded PO for "Probable Cause" instead of CO for "Competence for Duty." If this was in fact a harmless error, then the rights of the applicant were not prejudiced by the error on file in this case. The evidence in the record did not create a substantial doubt that the discharge would have been any different if the error had not been made. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635- 200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The appropriate RE code is 4. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending that although his DD Form 214 shows that he abused drugs, he disagrees because his offense was a onetime isolated incident. He has not used any drugs which is a fact and can be attested to by any of his past professional references. He believes his separation code and decision was harsh and unreasonable and he was an upstanding citizen and his post term of service has risen to heights of public office and prestige. The applicant's contentions was noted; however, although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 28 January 2019, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the post-service accomplishments and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. 11. 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, paragraph 14-12a e. Change SPD / RE Code to: JKN / RE-3 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 AR20180004003 1