1. Applicant's Name: a. Application Date: 13 April 2018 b. Date Received: 26 July 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through legal counsel, requests an upgrade of an under other than honorable conditions discharge to honorable and change the narrative reason for separation to Secretarial Authority, and a change of reentry eligibility (RE) code to "1." The applicant seeks relief contending, in effect, would like to reenlist in the Army and stand by the commitment the applicant made when the applicant was 17 and finish what the applicant started honorably. The applicant was the victim of one's own immaturity and the substantial error of the Army in failing to ensure the applicant understood one's rights. The applicant was given improper guidance which interfered with a legal right. The applicant turned to the only option that made sense at the time which led to misconduct and ultimately discharge from the Army. The applicant believes if the applicant had been properly advised and supported when the applicant needed help, the applicant would not have needed to turn to other options to obtain a discharge and take care of the family. The legal principles of propriety and equity demand that the applicant have the military records corrected. 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 / Chapter 14-12c(2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 23 January 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 November 2006 (2) Basis for Separation: The applicant was informed of the following reasons: for being a deserter from 22 February 2006 until 26 June 2006; Wrongfully using marijuana between 7 June 2006 and 7 July 2006; and Violating 82nd Airborne Division Regulation 190-2 by wrongfully possessing a pipe used for inhaling marijuana (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 6 November 2006, the applicant waived his right to an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general (under honorable conditions) discharge certificate. The chain of command recommended disapproval of the conditional waiver and administrative separation with a characterization of service Under Other Than Honorable Conditions (UOTHC) On 22 December 2006, the applicant's request was disapproved, and a board of officers was appointed under the provisions of AR 635-200, Chapter 2, paragraph 2-7 and Chapter 5 to determine whether the applicant should be retained on active duty or discharged prior to his normal term of service pursuant to AR 635-200, chapter 14, section III, paragraph 14-12c. Evidence in the record indicates that on 28 December 2006, the applicant submitted an unconditional waiver of his administrative separation board. The chain of command recommended approval of the unconditional waiver and administrative separation with a characterization of service Under Other Than Honorable Conditions (UOTHC). (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: On 28 December 2006, having reviewed the request for the unconditional waiver of an administrative separation board proceedings submitted by the applicant, the separation authority directed that the applicant be discharged from the US Army with a service characterization of Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 March 2005 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B1P, Infantryman / 1 year, 4 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 13 July 2006, reflects the applicant tested positive for THC 192 during a Competence for Duty/Command Direct/Fitness for duty (CO) urinalysis testing conducted on 7 July 2006. Report of Mental Status Evaluation, dated 17 July 2006, shows that the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels. The applicant was psychiatrically cleared for any administrative action or training as deemed appropriated by his Command. Several Personnel Action forms, reflecting the applicant's duty status changing as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective (22 February 2006); From "AWOL" to "Dropped From Rolls (DFR)," effective (24 March 2006); From "AWOL" to "PDY," effective (7 July 2006) From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective (20 July 2006); From "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective (12 August 2006). i. Lost Time / Mode of Return: AWOL 134 days (22 February 2006 to 6 July 2006) and confinement military authorities 23 days (20 July 2006 to 11 August 2006). j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; and exhibits which include personal statement, extracts, and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contents that he currently works for a company fixing computers. He takes care of his girlfriend, son, and father who is fighting cancer making sure all of them are first and he is last. 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 through legal counsel requests an upgrade of his under other than honorable conditions discharge to honorable, and change his narrative reason for separation to Secretarial Authority, and the reentry eligibility (RE) code to "1." 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 evidence of record shows the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with an under other than 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. 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, the greater weight of the evidence indicated the positive THC urinalysis was miscoded as "CO." The proper coding should have been IO, Inspection Other. This is the proper code for a "valid inspection under circumstances to include testing Soldiers returning from AWOL according to AR 600-85, para 4-5(a)(2). The date of the urinalysis in the applicant's case was 7 July 2006. He was apprehended on 26 June 2006. It appears that the urinalysis was directed as part of an inspection routinely ordered for Soldiers returning from AWOL. 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 IO for "Inspection Other" 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. Also, the attorney representing the applicant at the time had not argued that the test result should have been deemed limited use evidence. Likewise, the statement from the applicant himself did not provide any evidence to indicate that the test was anything other than an inspection conducted on a Soldier returning from desertion. The applicant seeks relief contending that he was the victim of his own immaturity and the substantial error of the Army in failing to ensure he understood his rights. He was given improper guidance which interfered with a legal right. He turned to the only option that made sense at the time which led to his misconduct and ultimately his discharge from the Army. He believes if he had been properly advised and supported when he needed help, he would not have needed to turn to other options to obtain a discharge and take care of his family. The legal principles of propriety and equity demand that he have his military records corrected. The applicant's contentions were noted; however, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. 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 applicant expressed his desire for an upgrade of his discharge for the purpose of being to reenlist in the Army and stand by the commitment he made when was 17 and finish what he started honorably. However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service. Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. 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 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 AR20180010414 1