1. Applicant's Name: a. Application Date: 9 August 2018 b. Date Received: 27 September 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, the discharge was inequitable because it was based on an isolated incident during 70 months of service with other adverse action. The discharge was improper because the applicant did not knowingly ingest THC and did not violate Article 112a. The discharge was improper because the applicant was undiagnosed / untreated for TBI and could not effectively advocate for oneself during discharge proceedings. The discharge was improper because pre-service tattoos, properly listed in the enlistment documents, were used against the applicant in the discharge proceedings. 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 Cannabis Use NOS and Occupational Problem. The applicant is 100% service-connected for TBI from the VA. The VA has also diagnosed the applicant with Major Depressive Disorder and TBI. In summary, the applicant's BH diagnosis is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 28 June 2019, and by a 3-2 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: 14 June 2016 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 3 May 2016 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; wrongful use of tetrahydrocannabinol (THC) between (29 November 2015 and 29 December 2015). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 3 May 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 24 May 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 March 2014 / 4 years b. Age at Enlistment / Education / GT Score: 21 years / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M1P, Motor Transport Operator / 4 years, 11 months, 25 days d. Prior Service / Characterizations: RA, 20 June 2011 to 5 March 2014 / HD e. Overseas Service / Combat Service: Alaska / Italy / None f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, NOPDR, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 16 March 2016, for wrongful use of tetrahydrocannabinol (THC) between (29 November 2015 and 29 December 2015); reduction to PFC / E-3, forfeiture of one half month pay for two months (suspended); extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: VA rating decision, dated 27 March 2018, relates the applicant was service connected for TBI injury with peripheral vestibular disorder and PTSD. He was granted an evaluation of 100 percent disabling. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); DD Form 214; applicant statement to the Board (two pages); AMHRR documents, diplomas, various certificates, oath of reenlistment, honorable discharge certificate, AER, award recommendation, AAM Citation, NATO travel order, Joint Services Transcript (3 pages), operator's permit; CID Agent's Report, positive drug test results, FLAG, Article 15 punishment worksheet, Article 15 proceedings, partial Chapter 14 separation packet (six pages); medical documents (nine pages); physical profile, VA Rating decision; progress notes, VA documents (three pages); and pre authorized chiropractic treatment (four pages); 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he attended the Academy of Art University in San Francisco using G.I. Bill. He is scheduled to graduate December 2018 with an Associate's Degree in Industrial Design. 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. 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 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. 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 14-12c(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. 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 the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. 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. The applicant, by violating the Army's policy not to possess or use illegal drugs, 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 an honorable discharge at the time of separation. 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 requests a change to the narrative reason for separation. 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 regulation further stipulates that no deviation is authorized. The applicant seeks relief contending, his discharge was inequitable because it was based on an isolated incident during 70 months of service with other adverse action. 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 of service. 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 further contends, his discharge was improper because he did not knowingly ingest THC and he did not violate Article 112a. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he did not knowingly ingest THC. The applicant also contends, his discharge was improper because he was undiagnosed / untreated for TBI and could not effectively advocate for himself during discharge proceedings. The record of evidence shows that the applicant consulted with legal counsel was advised of the basis for his contemplated separation and its effects, the rights available to him, the right to waive his rights, and he personally made the choices indicated in his election of rights. The applicant additionally contends, his discharge was improper because his pre-service tattoos, properly listed in his enlistment documents were used against him in the discharge proceedings. The evidence of record shows that the reason for the applicant's discharge was wrongful use of THC. There was no mention of tattoos in the notification letter. 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 28 June 2019, and by a 3-2 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 AR20180014920 1