1. Applicant's Name: a. Application Date: 7 April 2019 b. Date Received: 12 April 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general, under honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, his discharge characterization was inequitable because it was based on an isolated incident. The applicant states he volunteered for and completed Airborne school, the Ranger Indoctrination Program, and Ranger School. He was deployed to Afghanistan and received the Army Good Conduct Medal. In a records review conducted on 14 July 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision (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 / General (Under Honorable Conditions) b. Date of Discharge: 5 September 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 August 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used oxymorphone on or about 6 March 2012 and on or about 9 April 2012, for which the applicant received an Article 15. (3) Recommended Characterization: General, under honorable conditions (4) Legal Consultation Date: 13 August 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 23 August 2012 / General, under honorable conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 August 2008 / 4 years, 22 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 125 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G, Food Service Operation Specialist / 3 years, 16 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: SWA / Afghanistan (21 March 2012 - 11 June 2012) f. Awards and Decorations: AGCM, NDSM, ASR, OSR, Ranger Tab, Parachutist Badge g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 11 May 2012, reflects the applicant wrongfully used oxymorphone, a Schedule II controlled substance between on or about 6 March 2012 and on or about 9 March 2012. The punishment consisted of reduction to private/E-1; forfeiture of $745.00 pay per month for two months, suspended, to be automatically remitted if not vacated before 14 November 2012; and extra duty for 45 days. i. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Letter of Recommendation, DD Form 214 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides 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), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides 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, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification 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. (2) 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. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (7) 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. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of the 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. By the misconduct (drug abuse), the applicant diminished the quality of the 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, by violating the Army's policy not to possess or use illegal drugs, compromised the special 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 that ultimately caused his discharge from the Army. The applicant contends his discharge characterization was inequitable because it was based on an isolated incident. The applicant also contends, in effect, he had good service including a deployment to Afghanistan. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (YES) Applicant was diagnosed with Adjustment Disorder while on active duty which, under certain limited circumstances, may be determined to be a mitigating condition. (2) Did the condition exist or experience occur during military service? (YES) Applicant's diagnosis of Adjustment Disorder was made while he was on active duty. His VA diagnoses of MDD and ADHD are not service-connected, nor has the applicant contended these conditions began during service. As such, the Board found the evidence of record did not reflect MDD or ADHD existed or occurred during military service. . (3) Does the condition or experience actually excuse or mitigate the discharge? (NO) While the applicant has been diagnosed with Adjustment Disorder (in the military), ADHD and MDD (by the VA), in the opinion of the Board's Medical Advisor, a voting member, these BH conditions do not mitigate his illicit use of drugs. This is because he has a pre-service history of being heavily involved in the drug-laden "party scene". The Board decided that the applicant did not use drugs to self-medicate Adjustment Disorder, he used drugs because this habit existed pre-service. The Board found the evidence did not support a finding that the MDD or ADHD began or were aggravated during active service. The VA has not service connected his diagnoses of MDD or ADHD.. The ADRB concurred with the Medical Advisor that it is more likely than not that these later diagnoses of MDD and ADHD are as a result of his pattern of polysubstance dependence/abuse rather than vice versa. (4) Does the condition or experience outweigh the discharge? (NO) Applicant's various non-mitigating BH conditions do not outweigh his discharge characterization. As noted above, the Board found the applicant's diagnosed BH conditions do not mitigate his illicit drug use. Contrary of the applicant's contention, the misconduct was not an isolated incident. The Board decided that the applicant did not use drugs to self-medicate Adjustment Disorder, he used drugs because this habit existed pre-service. The ADRB concurred with the Medical Advisor that it is more likely than not that these later diagnoses of MDD and ADHD are as a result of his pattern of polysubstance dependence/abuse rather than vice versa. The evidence reflects the applicant engaged in drug use prior to service that continued during service and this pattern of misconduct is not outweighed by the non-mitigating conditions. b. The applicant contends his discharge characterization was inequitable because it was based on an isolated incident, and, he had good service including a deployment to Afghanistan. The record shows this was not an isolated incident as there was a history of drug use prior to military service and DUI/drug use in the military while assigned to a Ranger Battalion prior to the drug used as the basis for separation. c. The Board determined that the applicant was properly and equitably discharged. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, there were no BH diagnoses which mitigated the multiple uses of illicit substances and DUIs, and 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. (2) The Board voted not to change the applicant's reason for discharge because, despite applying liberal consideration, there were no BH diagnoses which mitigated the misconduct and the reason the applicant was discharged was both proper and equitable. (3) Because the characterization and reason were not changed, the SPD/RE codes will not change. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / 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 AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190005728 1