1. Applicant's Name: a. Application Date: 5 November 2018 b. Date Received: 21 November 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in pertinent part and in effect, the discharge is inequitable, because it was based on misused drug abuse. The applicant sought help and is currently receiving therapy for mental health. The applicant is not a bad person. The applicant never disobeyed leaders while serving. The applicant is still young and desires to help and serve the country, again. When both parents deceased in 2011, the applicant was abandoned to survive independently. The applicant completed high school and went to a technical school for two semesters. The applicant decided instead to enlist to help pay the college bills and obtain benefits to survive. The applicant is unable to obtain employment without being looked down on. The applicant never got into any trouble. The applicant stopped smoking and had been reading newspaper articles to turn life into a person the applicant would have been if the applicant received proper help. The applicant desires a second chance to serve, or at least, receive an upgrade. The applicant feels defeated and weak as the discharge is making the applicant feel depressed and down. 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 Alcohol Use and Cannabis Abuse. The applicant does not currently have a service-connected rating from the VA. The VA has diagnosed the applicant with Nicotine Dependence. 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 27 September 2019, and by a 5-0 vote, the Board determined the characterization was improper. The Board noted that the government introduced the results of a command directed urinalysis into the discharge process. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 4 April 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 December 2017 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for marijuana on 17 August, 2017, 25 August 2017, 5 September 2017, and 10 October 2017. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 February 2018, and 21 March 2018 (5) Administrative Separation Board: Unconditionally waived, 21 March 2018 (6) Separation Decision Date / Characterization: 21 March 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 October 2016 / 3 years, 25 weeks b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-3 / 91M10, Bradley Fighting Vehicle System Maintainer / 1 year, 6 months, 1 day d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for testing positive on a urinalysis on numerous occasions; being impaired while on duty; failing to be at his appointed place of duty at the prescribed time; An Electronic Copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 30 August 2017, indicates the specimen collected on 17 August 2017, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "THC." An Electronic Copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 14 September 2017, indicates the specimen collected on 25 August 2017, on an "CO" (Command Directed / Competence for Duty) basis, provided by the applicant, tested positive for "THC." (Pages 58 and 59 of Separation File) An Electronic Copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 25 September 2017, indicates the specimen collected on 5 September 2017, on an "CO" (Command Directed / Competence for Duty) basis, provided by the applicant, tested positive for "THC." However, DD Form 2624 (Specimen Custody Document - Drug Testing), undated, indicates the test basis was "IU" (Inspection, Unit). (Pages 61 and 62 of Separation File) An Electronic Copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 24 October 2017, indicates the specimen collected on 10 October 2017, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "THC." Memorandum for Record, dated 24 October 2017, reports a serious incident involving the applicant for suspected alcohol poisoning. He was picked up by an ambulance upon being found unresponsive in a parking lot on 24 October 2017, and was released from the hospital on 25 October 2017, after being treated for alcohol intoxication. FG Article 15 (NIF); however, Commander's Report, dated 7 December 2017, indicates the applicant was found guilty of violating Article 86 and Article 112a, UCMJ, and his punishment consisted of a reduction to E-1 and 45 days of extra duty and restriction. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 2 November 2017, indicates "BH Diagnoses" of "Alcohol Use Disorder; Cannabis Use Disorder," that the applicant was enrolled in SUDCC (Substance Use Disorder Clinical Care) program and EBH (Embedded Behavioral Health) program; and the applicant was cleared by Behavioral Health for Chapter 14-12c separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 5 November 2018, with self-authored statement and DD Form 214. 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. 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 under other than honorable conditions discharge to general (under honorable conditions). The applicant's available record of service, and the issues and documents 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 incidents of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused her discharge from the Army. 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 record of evidence further confirms that the characterization of service appears to be improper, because on 25 August 2017, the applicant was given a command directed (CO) urinalysis that tested positive for marijuana. The record contains a documentary evidence of a test basis for urinalysis coded "CO." Therefore, any Article 15 action relating to the test with collection date of 25 August 2017, was improper based on limited use evidence and the discharge was improperly characterized, given the introduction of the limited use evidence in the separation proceedings and discharge paperwork. There is no indication in the Chapter paperwork that the command recognized that the "CO" coding in the 25 August 2017 urinalysis could not be used in a UCMJ proceedings, nor usable for characterization of Service in a separation proceedings. Moreover, there is no indication the command believed the urinalysis were improperly coded and there is also no CID or MP report, or counseling statement(s) that shed any light on the reason the urinalysis was authorized on 25 August 2017. There is also a urinalysis coded "CO"; however, an MP report, dated 18 October 2017, provided that its report was based on the unit commander reporting that the applicant had tested positive for THC, during a Unit Urinalysis Inspection, conducted on 5 September 2017. Therefore, the Electronic Copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 25 September 2017, was improperly coded as "CO," but correctly coded as "IU" on the actual DD Form 2624. Therefore, the urinalysis of 25 August 2017, being properly coded CO, the discharge was improperly characterized given the introduction of the limited use evidence in the Chapter paperwork. The command treating the urinalysis as though as it was not limited use evidence, was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded. The applicant contends the discharge was inequitable, because it was based on misused drug abuse. 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he was unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request to upgrade the characterization of his discharge. The applicant contends that an upgrade would allow him educational and other benefits. However, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Although the applicant did not directly present any behavioral health issues, a careful review of the available record indicates the applicant's behavioral health issues symptoms existed. If the Board determines the applicant's behavioral health issues were significant contributing factors to her misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. The applicant desires a second change to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. Given the inclusion of the 25 August 2017, "CO" coding document as limited use, 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 27 September 2019, and by a 5-0 vote, the Board determined the characterization was improper. The Board noted that the government introduced the results of a command directed urinalysis into the discharge process. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. 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 AR20180016074 4