1. Applicant's Name: a. Application Date: 19 June 2019 b. Date Received: 24 June 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 a change to his narrative reason for discharge and a change to his reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that he received a code 4 and misconduct (Drug Abuse) for which he did not use any illegal substances nor did he popped hot on a UA when he was in the Army. The applicant contends the reasoning for him being separated is unknown after talking to his battalion commander and sergeant major telling him they would give him another chance to prove himself. He feels that what happened to him was unjust and he has had two bumps in his career in the Army that he learned from quickly and adjusted to prove his worth in the military. Before the incidents he was a good Soldier to his peers and the lower enlisted to be that role model. He made a mistake in the summer of 2018 but that was held over his head for weeks and embarrassment which was the ultimate punishment. He has proven himself even more and molded him to perfect himself to be more responsible. November 2018 the most unexpected thing happened to him from keeping his mouth shut for a good buddy of his a year prior in 2017. An old friend of his in his company went under CID investigation for SHARP because of his buddy was claimed for rape. CID took his phone for evidence about them pertaining to the SHARP case. They found on his phone that he recorded a snapchat video of him with marijuana and that he was in the background of the video. He told him at the time what the consequences were for having that and he didn't want to be around that stuff because he didn't want to get jammed up for that, he was not going to tell anyone about that because he was his good buddy at that time in the military. The applicant didn't think too much about it, but little did he know for him making a video he got jammed up for this incident he had no part of holding any marijuana, touching it, or popping hot on any UA. The applicant believes it should be known that he enjoyed the military and would love to be a part of it again, he feels that this punishment was unjust and he can prove himself and he has a lot more to give back to the United States Army. In a telephonic personal appearance hearing conducted on 21 June 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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: 21 February 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 January 2019 (2) Basis for Separation: The applicant was informed of the following reason: for wrongfully possessing marijuana on or about 17 December 2017 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 11 January 2019 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: 24 January 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 February 2017 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-3 / 88M10, Motor Transport Operator / 2 years, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM, GWOTSM, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 18 August 2018, which indicates the applicant was the subject of investigation for an alcohol related traffic offense with a (.067) BAC. General Officer Memorandum of Reprimand, dated 18 September 2018, for driving in Kaiserslautern, Germany, with a BAC of 0.067. Field Grade Article 15, dated 12 December 2018, for wrongful possession of a controlled substance. The punishment consisted of reduction to E-2, forfeiture of $918.00 pay per month for one month (suspended), extra duty for 30 days, and an oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 11 December 2018, which indicates a BH Diagnoses of Alcohol Abuse, uncomplicated. It was noted that the applicant could understand and participate in administrative proceedings and appreciated the difference between right and wrong. The applicant met retention standards prescribed in AR 40-501 and there was no psychiatric condition, disease, or defect that warrant disposition through medical channels. The applicant was psychiatrically cleared for administrative actions as deemed appropriated by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letters of support; documents from his separation packet; and a working copy of his 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) 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 a change to his narrative reason for discharge and a change of his reentry eligibility (RE) code. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant seeks relief contending, in effect, that he received a code 4 and misconduct (Drug Abuse) for which he did not use any illegal substances nor did he pop hot on a UA when he was in the Army. The applicant contends the reasoning for him being separated is unknown after talking to his battalion commander and sergeant major telling him they would give him another chance to prove himself. Soldiers being processed for separation are assigned reentry codes based on their 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. There was no basis to grant a change to the reason or to the RE code. At the time of discharge, the applicant was appropriately assigned a reentry eligibility (RE) code of 4. An RE code of 4 cannot be waived and the applicant is not eligible to reenlist. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): N/A 10. 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 applicant is service-connected for Major Depressive Disorder (MDD) by the VA. (2) Did the condition exist or experience occur during military service? (YES) The VA has established that the applicant's MDD is service-connected. (3) Does the condition or experience actually excuse or mitigate the discharge? (NO) The ADRB concurred with the opinion of the Board's Medical Advisor, a voting member, that an individual who suffers from MDD might not be fully responsible for the act of using an illicit drug, but MDD does not excuse or mitigate the act of possessing a drug such as marijuana without using it. The applicant denies using marijuana. Possession, without use, of marijuana does not constitute self-medication of BH symptoms. As such, the Board, applying liberal consideration, found the applicant's misconduct was not mitigated by the MDD diagnosis. (4) Does the condition or experience outweigh the discharge? (NO) Despite the ADRB's application of liberal consideration, the Board found that possession of marijuana without use of it does not outweigh the applicant's General (under honorable conditions) discharge, especially when taken together with the applicant's DUI offense. The Board found that neither of these offenses are outweighed by the applicant's MDD diagnosis. b. The applicant contends that they did not use or get caught using elicit substances. This contention was noted by the Board, but the applicant was discharged for possession and not use. The applicant's separation packet indicates that there is a video of the applicant holding marijuana, and the command found this was sufficient evidence to discharge the applicant. The burden of proof remains with the applicant to provide the appropriate documents, witnesses, or explanations of the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. c. Even after applying liberal consideration, the Board denied the request upon finding that possession of marijuana without use of it does not outweigh the applicant's General (under honorable conditions) discharge, especially when taken together with the applicant's DUI offense. The Board found that neither of these offenses are outweighed by the applicant's MDD diagnosis. 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 misconduct 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 outweighed 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 code will not change, as the current codes are consistent with the procedural and substantive requirements of the regulation. 11. 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 AR20190011306 6