1. Applicant's Name: a. Application Date: 13 December 2018 b. Date Received: 14 January 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to general (under honorable conditions) and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, the discharge was inequitable due to a service-connected mood disorder. The discharge was inequitable because of an otherwise laudable military service record and exemplary post-service conduct. The applicant began using natural and synthetic marijuana to cope with the stress of enlistment, depression and anxiety. The misconduct was directly caused by symptoms of a mood disorder, and therefore, the condition mitigates the misconduct underlying discharge. 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 Anxiety, Depression, Anxiety Disorder, Drug Dependence, and Dysthymic Disorder. The applicant 50% service-connected for a Mood Disorder from the VA. The VA has also diagnosed the applicant with Major Depressive Disorder, Dysthymic Disorder, and Cannabis Use 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 4 October 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 / Under Other Than Honorable Conditions b. Date of Discharge: 16 January 2014 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 20 September 2013 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he wrongfully possessed and used Spice x2 (30 May 2013 and 4 May 2013); he was found smoking Spice with his subordinate (30 May 2013); and he failed to be at his appointed place of duty on divers occasions between (14 May 2013 and 16 May 2013). (3) Recommended Characterization: The applicant's chain of command recommended an Under Other Than Honorable Conditions discharge. (4) Legal Consultation Date: 24 September 2013, 4 November 2013, (5) Administrative Separation Board: On 24 September 2013, applicant voluntarily waive consideration of his case by an administrative separation board so long as he receive a general (under honorable conditions) characterization of service. If not, he request an administrative separation board. On 30 October 2013, the separation approving authority disapproved the applicant's conditional waiver and referred his case to an administrative separation board. On 4 November 2013, the applicant again consulted with legal counsel. His election of rights shows he waived legal counsel and consideration of his case by an administrative separation board. His election of rights indicates he consulted with legal counsel. However, on 7 November 2013, the applicant was notified to appear before an administrative separation board and advised of his rights. On 25 November 2013, the administrative separation board convened. The applicant appeared with counsel. The board recommended the applicant be discharged with issuance of a character of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: 8 January 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 March 2012 / 3 years b. Age at Enlistment / Education / GT Score: 29 years / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19D10, Cavalry Scout / 92F10, Petroleum Supply Specialist / 10 years, 10 months, 13 days d. Prior Service / Characterizations: RA, 4 March 2003 to 27 July 2007 / HD RA, 28 July 2007 to 11 January 2011 / HD RA, 12 January 2011 to 1 March 2012 / HD e. Overseas Service / Combat Service: Germany / Hawaii / Korea / SWA / Iraq x2, 29 October 2003 to 28 July 2004 and 27 July 2006 to 1 October 2007 f. Awards and Decorations: ARCOM-2, AAM-5, AGCM-3, NDSM, GWOTEM, ICM-CS, GWOTSM, NOPDR, KDSM, ASR, OSR-5, MUC g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 6 May 2013, relates the applicant was under investigation failing to obey a general order (paraphernalia) and wrongful possession and use of illegal controlled substance violations, on post. CID Report of Investigation, dated 7 June 2013, revealed the applicant was under investigation for making a false statement and failing to obey a general order. FG Article 15, dated 1 August 2013, violate a lawful general order, by wrongfully using Spice x2 (30 May 2013 and 4 May 2013); and violate a lawful general order, by wrongfully possessing Spice (30 May 2013); reduction to SPC / E-4, forfeiture of $1,201 pay for two months, extra duty and restriction for 45 days. The applicant received numerous negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 11 July 2013, indicates the applicant had an Axis I diagnosis of adjustment disorder with mixed emotions and unspecified drug dependence in early full remission. He was cleared for chapter process. Report of Mental Status Evaluation, dated 6 October 2013, shows the applicant had an Axis I diagnosis of adjustment, not otherwise specified. The service member has been screened for PTSD and TBI. These conditions were either not present or, if present, did not meet AR 40-501 criteria for a medical evaluation board. He did not meet criteria for PTSD diagnosis and was cleared for chapter process. VA Rating Decision, dated 1 May 2015, revealed the applicant was service connected for mood disorder and assigned an evaluation of 50 percent disabling, effective 17 January 2014. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's brief (three pages); petition in support of application (11 pages); Exhibit 1, Enlistment documents; Exhibit 2, Personal statement; Exhibit 3, DD Form 214; Exhibit 4, Timeline of Major Events in the Iraq War; Exhibit 5, Medical Intake Questionnaire; Exhibit 6, CENTCOM Medical Waiver Request; Exhibit 7, 2009 Pre-Deployment Health Assessment; Exhibit 8, Medical Intake Questionnaire; Exhibit 9, PTSD Checklist; Exhibit 10, Emergency Department Medical Notes; Exhibit 11, Commander Evaluation; Exhibit 12, Military Police Report; Exhibit 13, Sworn Statement; Exhibit 14, Memorandum ref Investigation; Exhibit 15, Sworn Statement; Exhibit 16, PTSD Screening; Exhibit 17, Report of Medical Examination; Exhibit 18, Summary of proceedings; Exhibit 19, Awards and Medals; Exhibit 20, Spartan College Records; Exhibits 21 and 22; Letters of Recommendation, CPT D.A.S. and M.S.; Exhibit 23, Memorandum for Secretaries of the Military Departments issued by the Office of the Under Secretary of Defense (A.M. Kurta) on August 25, 2017 re Clarifying Guidance to Military Discharge Review Boards and Board for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment; Exhibit 24, Department of Veterans Affairs Rating Decision; and Exhibit 25, Board Determination and Directed Action in Case Number AR20120023004, 29 May 2013. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states through counsel since his discharge he has attended automotive vocational school and aviation school. He received his A&P license, and is employed doing maintenance on Boeing planes as an A&P mechanic. He sought treatment for his substance addiction and no longer uses any illegal drugs, nor has he had any alcohol for over three years. 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 under other than honorable conditions to general (under honorable conditions) 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 NCO. The applicant, as an NCO, 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 through counsel seeks relief contending, his discharge was inequitable due to his service-connected mood disorder. The applicant submitted a VA rating decision, which shows he was service connected for was service connected for mood disorder and assigned an evaluation of 50 percent disabling, effective 17 January 2014. The applicant further contends, his discharge was inequitable because of his otherwise laudable military service record and exemplary post-service conduct. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant also contends, he began using natural and synthetic marijuana to cope with the stress of enlistment, his depression and anxiety. He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The service record contains no evidence of depression and anxiety diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant additionally contends, his misconduct was directly caused by symptoms of his mood disorder, and therefore, his condition mitigates the misconduct underlying his discharge. Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. 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 4 October 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 AR20190000967 1