1. Applicant's Name: a. Application Date: April 2019 b. Date Received: 17 May 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, he is in need of opening more opportunities for himself in order to live a productive life. He understands he was wrong for breaking the rules. He should have made better decisions by reaching out to his chain of command and discussing his issues. He was dealing with depression because his battle buddie's untimely death, who was killed off base at a nightclub. He was in a very dark place in life. He has been discharged for five and a half years and has a family that depends on him and without the upgrade, they will continue to suffer. As of this date, he has not used marijuana or any other illegal substance. He has been diligently working to achieve new goals he has set for himself in life. He is currently a law abiding citizen, with no criminal history. He is employed, full-time by Optimum Security, in the position of a lead security guard. He has other endeavors he would like to pursue such as law enforcement, or criminal justice. He cannot move forward without providing a record of requesting or being granted an upgrade. In a records review conducted on 20 August 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 / Under Other Than Honorable Conditions b. Date of Discharge: 25 October 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 September 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for marijuana on four separate occasions on or about 9 March 2012, 16 July 2013, 29 July 2013 and on or about 31 July 2013. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 27 September 2013 (5) Administrative Separation Board: the applicant conditionally waived then later unconditionally waived (6) Separation Decision Date / Characterization: 10 October 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 May 2011 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 2 years, 5 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 19 March 2012, reflects the applicant tested positive for THC 40 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 9 March 2012. FG Article 15, dated 28 March 2012, for wrongfully using marijuana (between on or about 9 February 2012 and on or about 9 March 2012). The punishment consisted of reduction to E-1; forfeiture of $745 pay per two months; and, extra duty and restriction for 45 days. Patient Progress Report, dated 23 May 2012, reflects the applicant was released from the Army Substance Abuse Program (ASAP). The applicant's in-progress evaluation was fair, and the counselor recommended terminating treatment and retain on active duty. The unit commander's appraisal of the applicant's performance was satisfactory. The reason for release from the ASAP programs was "Program Completed, Returned to Duty". Electronic Copy of DD Form 2624, dated 24 July 2013, reflects the applicant tested positive for THC 188 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 16 July 2013. Electronic Copy of DD Form 2624, dated 6 August 2013, reflects the applicant tested positive for THC 123 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 29 July 2013. Electronic Copy of DD Form 2624, dated 8 August 2013, reflects the applicant tested positive for THC 212 (marijuana), during an Inspection Random (IR) Random urinalysis testing, conducted on 31 July 2013. FG Article 15, dated 23 August 2013, for wrongfully using marijuana (between on or about 16 June 2013 and on or about 16 July 2013). The punishment consisted of reduction to E-1; forfeiture of $379 pay; and, extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 27 August 2013, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings, can appreciate the difference between right and wrong, and meets medical retention requirements (i.e. does not qualify for a Medical Evaluation Board). The applicant was diagnosed with Alcohol Abuse, Cannabis Abuse, Adjustment Disorder with Mixed Anxiety and Depressed Mood. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, as of this date, he has not used marijuana or any other illegal substance. He has been diligently working to achieve new goals he has set for his life. He is presently employed full time in the position of a lead security guard. 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), 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 3-7b 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. (3) 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. (4) 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. (5) 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. (6) 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. e. 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). f. 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." 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 requests an upgrade to general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends, he is in need of opening more opportunities for himself in order to live a productive life. An upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends, dealing with depression at the time of his battle buddy's untimely death, he was in a bad place. The applicant's AMHRR contains documentation that supports a diagnosis of in-service Alcohol Abuse, Cannabis Abuse, Adjustment Disorder with Mixed Anxiety and Depressed Mood. The record shows the applicant underwent a mental status evaluation (MSE) on 27 August 2013, which indicates the applicant was mentally responsible, and was able to recognize right from wrong. The MSE was considered by the separation authority. The applicant contends, he has not used marijuana or any other illegal substance. He is a law abiding citizen and has obtained employment. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in- service misconduct was an aberration and not indicative of the member's overall character. 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 has a diagnosis of Adjustment Disorder which, under some circumstances, can be potentially mitigating. (2) Did the condition exist or experience occur during military service? Yes. Applicant has a diagnosis of Adjustment Disorder which was identified while he was on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant was diagnosed with Adjustment Disorder and various substance use disorders while on active duty. These conditions, however, do not mitigate his multiple instances of wrongfully using marijuana. While Adjustment Disorder can be associated with depression-like symptoms, anxiety, difficulty with daily activities and/or interpersonal difficulties, these symptoms are mild, of short duration, resolve on their own and typically are not associated with substance abuse. There is no indication in the applicant's medical records that he used substances in order to treat an underlying BH condition. This is supported by the fact that during his separation MSE, he reported he used marijuana repeatedly in order to test positive for THC so he could be separated from the Army. (4) Does the condition or experience outweigh the discharge? No. The applicant's diagnosis of Adjustment Disorder does not outweigh his discharge characterization. This is because, in the applicant's case, there is no association between his Adjustment Disorder and his multiple instances of wrongfully using marijuana. Additionally, the applicant reported to his BH provider that he deliberately used marijuana as a means to be separated from the Army. b. Response to Contention(s): (1) The applicant contends, he is in need of opening more opportunities for himself in order to live a productive life. The Board does not grant relief to gain employment or enhance employment opportunities. (2) The applicant contends, dealing with depression at the time of his battle buddy's untimely death, he was in a bad place. There was no evidence submitted to support this contention. The applicant reported to his BH provider that he deliberately used marijuana as a means to be separated from the Army. (3) The applicant contends, he has not used marijuana or any other illegal substance. He is a law abiding citizen and has obtained employment. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in- service misconduct was an aberration and not indicative of the member's overall character. c. The Board denied the request upon finding the separation was both proper and equitable. The Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant, and the available medical evidence did not support a finding that the applicant's discharge was improper or inequitable. 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 mitigating circumstances for consideration by the Board for the applicant's four times, deliberate, marijuana use. The applicant did not supply sufficient independent corroborating evidence to support contentions, 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 or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority 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 N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry 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 AR20190007444 2