1. Applicant's Name: a. Application Date: 13 April 2018 b. Date Received: 19 April 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, that the discharge was in violation of the Limited Use Policy per Army Regulation (AR) 600-85. The applicant contends that self-referral into the substance use disorder clinical care for alcohol abuse was due to depression and uncontrollable drinking. Months later, the applicant was notified by leadership about failing a urine analysis and the applicant would be involuntarily removed. During this process "Limited Use of Evidence" was used against the applicant, reflecting on the DAMIS. The applicant contends that limited use of evidence prohibits the use by the government of protected evidence against a Soldier in action 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. 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 Adjustment Disorder with mixed anxiety and depressed mood, Major Depressive Disorder, Alcohol Abuse, and Alcohol Dependence. VA records only contain DoD content. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 6 November 2019, 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: 5 October 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 September 2017 (2) Basis for Separation: The applicant was informed of the following reason: for wrongfully using 3,4-methylenedioxyamphetamine and marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 26 September 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 26 September 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 April 2017 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 1 month, 17 days d. Prior Service / Characterizations: RA, 19 August 2014 to 27 April 2017 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM-3, NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 28 July 2017, reflects the applicant tested positive for MDA 1510 THC 34 during an Inspection Unit (IU) urinalysis testing conducted on 30 May 2017. Army Substance Abuse Program (ASAP) Enrollment that indicates the applicant was command referred for improper use of drugs as a result of MDA/THC. Drug & Alcohol Testing Management Information System (DAMIS), which indicates the applicant's PIR dated of 6 July 2017 and his Referral Method as self-referral. Several negative counseling statements for various actions of misconduct and duty performance to include wrongfully using a controlled substance and recommendation for separation from the United States Army. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 23 August 2017, which indicates the applicant had an active BH profile due to SUDCC participation. His BH diagnoses showed the applicant suffered with alcohol use disorder, drug use, occupational problems, and relationship problems. DD Form 2807-1 (Report of Medical History), dated 12 September 2017, "comments"; makes reference to 17d,e,f, that the SM/applicant was being evaluated for depression and sleep disorders. He did not meet criteria for sleep study and he was to continue with therapy at BH. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DAMIS. 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. 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. 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 honorable 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. The applicant seeks relief contending that his discharge was in violation of the Limited Use Policy per Army Regulation (AR) 600-85. The applicant contends that his self-referral into the substance use disorder clinical care for alcohol abuse was due to his depression and uncontrollable drinking. Months later he was notified by his leadership he failed a urine analysis and he would be involuntarily removed. During this process "Limited Use of Evidence" was used against him reflecting on his DAMIS. He contends that limited use of evidence prohibits the use by the government of protected evidence against a Soldier in action 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. The applicant's contentions were noted; 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was in violation of the Limited Use Policy. Evidence of records reflects the applicant tested positive for MDA 1510 THC 34 during an Inspection Unit (IU) urinalysis testing conducted on 30 May 2017. The Drug & Alcohol Testing Management Information System (DAMIS) document submitted by the applicant and found in his record, was noted, however, it shows that the applicant's PIR dated was 6 July 2017. Although the documents show the applicant's Referral Method as self- referral; this self-referral was over 30 days after the drug test he underwent on 30 May 2017 resulting in a positive result for MDA 1510 THC 34. 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 character of the applicant's discharge is commensurate with his overall service record. 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 November 2019, 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 AR20180006356 1