1. Applicant's Name: a. Application Date: 30 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, that all of the cited misconduct to separate him was obtained as a result of his request for emergency medical care. This information is protected under the limited use policy (AR 600-85, paragraph 10-12a) require characterization of separation to be honorable. The applicant called his Squad Leader for emergency medical help for drug use. He never popped hot on a Pee Test. The Article 15 that was imposed on 25 July 2014 was dismissed, because it fell under the limited use policy. He was having a hard time, started smoking K2, he got addicted. He asked for help, he didn't get caught with anything, he asked for treatment. He got in trouble, but the Article 15 he received was dismissed because of the limited use policy. In a records review conducted on 1 September 2021, and by a 5-0 vote, the Board determined that the characterization of service was improper due to limited use evidence was a part of separation proceedings, requiring an upgrade by regulation. Therefore, the characterization not being proper and equitable, the Board granted relief in the form of an upgrade of the applicant's characterization of service to Honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 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: 17 September 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 August 2014 (2) Basis for Separation: The applicant was informed of the following reasons: for between on or about 20 April 2014 and on or about 9 May 2014, at or near Joint Base Lewis- Mc-Chord, WA, he wrongfully consumed Synthetic Cannabinoids (Spice), a controlled substance; On or about 5 June 2014, at or near Portland, OR, he wrongfully consumed Mollies; Between on or about 2 July 2013 and or about 14 June 2014, he wrongfully used Marijuana, a schedule 1 controlled substance; On or about 13 June 2014, at or near Joint Base Lewis-Mc-Chod, WA, he wrongfully used Percocet's; and On or about 13 June 2014, at or near Joint Base Lewis-Mc-Chord, WA, he wrongfully used Vicodin, a schedule III controlled substance. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 August 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 July 2013 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-2 / 91F10, Small Arms/Artillery Repairer / 1 year, 2 months, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Army Substance Abuse Program (ASAP) Enrollment, dated 23 June 2014, indicates the applicant self-referred for improper use of drugs. Report of Mental Status Evaluation, dated 7 August 2014, indicates he could understand and participated in administrative proceedings and could appreciated the difference between right and wrong. It was noted that the applicant was initially evaluated by CPT E.L., on 2 June 2014, for separation under Chapter 5-17. He was cleared for administrative separation at that time. After that time, he continued to meet with the applicant regularly and there had been no change in his condition which would alter the original assessment. From a Behavioral Health perspective, the applicant was cleared for administrative separation IAW AR 635-200, Chapter 14. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; memorandum for record, dated 12 August 2014, "Field Grade Article 15, PV2 X.J.D.; memorandum for record, dated 20 August 2014, "Separation of PV2 X.J.D.; extract from AR 600-85, paragraph's 10-10 through 10-15; and DD Form 214 for the period of service under review. 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) Paragraph 3-8a states A Soldier is entitled to an honorable characterization of service if limited-use evidence (see AR 600-85, chap 6) is initially introduced by the Government in the discharge proceedings, and the discharge is based upon those proceedings. The separation authority will consult with the servicing Judge Advocate in cases involving limited use evidence. (6) 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. (7) 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. (8) Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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, paragraph 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." 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 honorable. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. 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 record indicates separation action was initiated against the applicant in that between on or about 20 April 2014 and 9 May 2014, he wrongfully consumed Synthetic Cannabinoids (Spice), a controlled substance; on or about 5 June 2014, he wrongfully consumed Mollies; between 2 July 2013 and 14 June 2014, he wrongfully used Marijuana, a schedule 1 controlled substance; on1or about 3 June 2014, he wrongfully used Percocet's; and on or about 13 June 2014, he wrongfully used Vicodin, a schedule III controlled substance. The applicant seeks relief contending that all of the cited misconduct to separate him was obtained as a result of his request for emergency medical care. This information is protected under the limited use policy (AR 600-85, paragraph 10-12a) require characterization of separation to be honorable. The applicant called his Squad Leader for emergency medical help for drug use. He never popped hot on a Pee Test. The Article 15 that was imposed on 25 July 2014 was dismissed, because it fell under the limited use policy. He was having a hard time, started smoking K2, he got addicted. He asked for help, he didn't get caught with anything, he asked for treatment. He got in trouble, but the Article 15 he received was dismissed because of the limited use policy. Memorandum for Record, dated 12 August 2014, signed by M.E.R., indicates the Field Grade Article 15 that was imposed on 25 July 2014 was dismissed. The unsigned Memorandum of Record, dated 20 August 2014, from C.J.R., Defense Counsel, makes reference to all the cited misconduct to separate the applicant was obtained as a result of the applicant's request for emergency medical care and thus it was protected under the limited use policy. It was noted limited use did not prevent the unit from separating the Soldier (Applicant), but it would require characterization of separation to be Honorable. 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. The Board arrived at this finding based upon the medical advisor's review of DoD and VA medical records. The applicant held an in-service diagnosis of Adjustment Disorder and is service-connected for the same. (2) Did the condition exist or experience occur during military service? Yes. In-service records reflect an Adjustment Disorder diagnosis. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, an Adjustment Disorder does not lead to impaired decision-making resulting in drug use. Specifically, the applicant coherently discussed his decision to use drugs, discussed drug use with peers who informed him there was an alternative they believed would not show in a UA, and adjusting his drug of choice based on that belief to try and avoid detection; not characteristic of a mitigating condition. Accordingly, records are void of a mitigating diagnosis or condition. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's drug use was not mitigated by his Adjustment Disorder Diagnosis. (5) The applicant seeks relief contending that all of the cited misconduct to separate him was obtained as a result of his request for emergency medical care. The Board considered this contention during proceedings, and determined that relief was warranted due to the separation packet containing Limited Use Evidence in proceedings. b. The Board determined that the characterization of service was improper due to limited use evidence was a part of separation proceedings, requiring an upgrade by regulation. c. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because Limited Use Evidence was used in separation proceedings, requiring an upgrade per regulation. Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, 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: Yes b. Change Characterization to: Honorable 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 AR20190008678 7