1. Applicant's Name: a. Application Date: 22 June 2018 b. Date Received: 25 June 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 pertinent part and in effect, the request is based on mitigating circumstances surrounding the discharge. The applicant lost the mother on 6 October 2008, at age 17 from ovarian cancer. It was extremely difficult to watch the disease take its course. The applicant enlisted two years later. While in basic training, the applicant had a "Torsion" of the left testicle that was not immediately treated, because the applicant did not want to miss any classes in AIT. The pain became so great that the applicant went on sick call. At the time, the condition required surgery for removal. The applicant was placed on pain medication for approximately a month and a half. The doctor then abruptly stopped the prescription without tapering down the dosage. The applicant started self-medicating with alcohol and anything the applicant could find on the street. Upon realizing the applicant had a problem, the command refused to help when the applicant sought their help. 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 Opioid Dependence. The applicant is 20% service-connected for non-BH diagnoses from the VA. The VA has also diagnosed the applicant with Opioid Dependence, Cocaine Abuse, and Major Depressive Disorder. 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 31 January 2020, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of eight biochemical tests which were coded CO (Command Directed or Competence for Duty). This 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 full relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was proper and equitable and the Board voted not to change it. (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: 7 June 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 April 2013 (2) Basis for Separation: The applicant wrongfully used oxymorphone and oxycodone. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 29 April 2013 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Decision undated, but in May or June 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 September 2010 / 3 years, 27 weeks b. Age at Enlistment / Education / GT Score: 19 / HS School graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-1 / 91B10, Wheeled Vehicle Mechanic / 2 years, 8 months, 18 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 DD Form 2624 (Specimen Custody Document - Drug Testing), dated 13 November 2012, indicates the specimen collected on 25 October 2012, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "OXCOD" and "OXMOR." Laboratory Confirmed Biochemical Testing Results referring to attached listing of prior positive urinalyses, indicates that a urinalysis collected on 24 January 2013, tested positive for "OXCOD/OXMOR." The reference attachment listed 10 positive results for "OXCOD/OXMOR" and "OXMOR," collected on two separate occasions on 25 October 2012 and 24 January 2013, an "IR" (Inspection, Random) bases, and on eight separate occasions on "CO" (Command Directed or Competence for Duty) bases between 12 December 2012 and 24 January 2013. Counseling statements for using illegal substance (cocaine); illegally using a prescription drug (Oxymorphone and Oxycodone); the intent of involuntarily separating the applicant; placing a flag on his ERB; being processed for an Article 15; using illegal substance (cocaine); and testing positive for Oxymorphone during a urinalysis. FG Article 15, dated 31 January 2013, for wrongfully using oxymorphone and oxycodone, both scheduled II controlled substances between 22 October 2012 and 25 October 2012. The punishment consisted of a reduction to E-1, forfeiture of $758 pay per month for two months (suspended), and 30 days of correctional custody (suspended). An Electronic Copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 5 February 2013, indicates the specimen collected on 24 January 2013, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "OXCOD" and "OXMOR." Report of Mental Status Evaluation, dated 21 February 2013, indicates that there was "No Diagnosis (pending ASAP evaluation)" for "AXIS I (psychiatric conditions)." Record of Supplementary Action under Article 15, UCMJ, dated 13 March 2013, indicates that the suspended punishment of 30 days of correctional custody, imposed on 31 January 2013, was set aside, since the command post did not support correctional custody, and all rights, privileges, and property affected were restored. 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 22 June 2018. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's available record of service and the issues 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 serious incidents 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 record further confirms that on eight separate occasions, 12 December 2012, 19 December 2012, 27 December 2012, 3 January 2013, 7 January 2013, 16 January 2013, 22 January 2013, and 24 January 2013, the applicant was given command directed urinalyses (CO) and he tested positive for Oxymorphone and Oxycodone. There is no indication in the Chapter paperwork that the command recognized and believed the urinalyses were improperly coded "CO." There are also no CID reports or counseling statements that shed any light on the reasons the urinalyses were authorized, but for intended use to separate the applicant for misconduct. Therefore, the record showing the urinalyses being properly coded CO were improperly introduced in the separation proceedings, based on the limited use evidence, thus such renders the discharge was improperly characterized, given the introduction of the limited use evidence in the Chapter paperwork. The limited use information as protected evidence mandates an honorable characterization of service. 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 contends the resulting treatment from his medical issues led to his self- medicating, and that upon realizing he had a problem and seeking help, his command refused to help. However, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to those efforts. Furthermore, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. Given the improper introduction of limited use information, the discharge was not consistent with the procedural and substantive requirements of the regulation, was not within the discretion of the separation authority, and the applicant was not provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 31 January 2020, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of eight biochemical tests which were coded CO (Command Directed or Competence for Duty). This 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 full relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was proper and equitable and the Board voted not to change it. 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 AR20180009348 5