1. Applicant's Name: a. Application Date: 7 August 2019 b. Date Received: 9 August 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 honorable. The applicant seeks relief contending, in effect, the applicant was discharged for taking prescribed medication outside of the 6-month window. The applicant complained about back pain for years but nothing was done. The applicant abused oxycodone to get through the pain of job requirements. The discharging offense was caused by a medical issue which the applicant could not control. The applicant had honorable service and achieve the rank of sergeant in 3 years. The discharge was an extreme course of action. The Department of Veteran Affairs found the source of the applicant's back pain after discharge from the Army and has taken the appropriate steps to ease pain. The applicant states employed for 5 years at same company, with current title of Project Manager. In a records review conducted on 9 March 2022, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the typical Army wide drug use separation. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 18 October 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 July 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used oxymorphone between 17 February 2013 and 25 February 2013 and between 20 Mach 2013 and 28 March 2013. The applicant also used oxymorphone and oxycodone between 8 October 2012 and 16 October 2012. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 5 August 2013 (5) Administrative Separation Board: The applicant waived the right to an Administrative Separation Board on 19 September 2013. (6) Separation Decision Date / Characterization: 2 October 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 October 2011 / 3 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B, Infantryman / 4 years, 5 months, 21 days d. Prior Service / Characterizations: RA, 28 April 2009 - 2 October 2011 / HD e. Overseas Service / Combat Service: SWA / Iraq (30 June 2010 - 15 June 2011) f. Awards and Decorations: ICM-CS-2, ARCOM, AAM, AGCM, NDSM, NCOPDR, ASR, OSR-2, CIB, Driver and Mechanic Badge-Wheeled Vehicle(s) Clasp g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 13 May 2013, reflects the applicant wrongfully used oxymorphone between on or about 20 March 2013 and on or about 28 March 2013 and wrongfully used oxymorphone between on or about 17 February 2013 and on or about 25 February 2013. The punishment consisted of reduction to specialist/E-4; forfeiture of $1,096 pay per month for 2 months; extra duty for 45 days, suspended, to be automatically remitted if not vacated before 15 July 2013; and restriction for 45 days, suspended, to be automatically remitted if not vacated before 15 July 2013. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Metal Status Evaluation, dated 15 May 2013, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with opioid dependence. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, VA Medical Records 6. POST SERVICE ACCOMPLISHMENTS: The applicant states employed for 5 years at same company, with current title of Project Manager. 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. SUMMARY 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 applicant requests an upgrade to honorable. The applicant was discharged for taking prescribed medication outside of the 6-month window and abusing oxycodone to get through the pain of job requirements. The applicant contends having honorable service and achieving the rank of sergeant in 3 years. 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 contends the discharge was an extreme course of action. The service record indicates the applicant committed a discrediting offense, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant states being employed for 5 years at same company, with current title of Project Manager. 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. 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's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation. Applicant has been diagnosed with Adjustment DO with depressed mood and Anxiety DO. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found in-service diagnosis of Adjustment DO with depressed mood and post service VA diagnosis of Anxiety Disorder (30% service connected). (3) Does the condition or experience actually excuse or mitigate the discharge? No. It is the opinion of the Agency Medical Advisor that there are no mitigating BH conditions. While the applicant was diagnosed in-service with Adjustment DO with depressed mood and is 30% service connected by the VA for the diagnosis of Anxiety Disorder, neither of these conditions mitigates the substance abuse-related misconduct. Review of medical records indicates that the applicant suffered from polysubstance dependence for several years prior to entering the Army. In the BH Advisor's opinion, the applicant's in-service opioid abuse/dependence was a continuation of a pattern of substance abuse/dependence that developed prior to entering active duty. There is no evidence that the diagnoses of Adjustment DO and/or Anxiety DO caused or contributed to the substance-related misconduct. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions completely outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends abusing oxycodone to get through the pain of job requirements. As this is an admission of intentional drug use, with no mitigating conditions for consideration, the Board appreciates the applicant's forwardness, but determined that honesty after being caught does not specifically warrant an upgrade. (2) The applicant contends having honorable service and achieve the rank of sergeant in 3 years. The Board considered, but found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, including repeated, intentional drug use, was not sufficiently meritorious to warrant an honorable discharge. (3) The applicant contends the discharge was an extreme course of action. The Board determined that discharging the applicant was appropriate but voted to grant partial relief to make the discharge equitable with the vast majority of Army-wide drug abuse discharges. c. The Board determined that the characterization of service was inequitable and too harsh based on the typical Army wide drug abuse discharge. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's discharge was too harsh for the offense of drug abuse. Thus the prior characterization is no longer appropriate. The board did not find any other mitigating circumstances and thus full relief to an honorable characterization was denied. (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: General, Under Honorable Conditions 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 AR20190011329 1