1. Applicant’s Name: a. Application Date: 4 September 2019 b. Date Received: 6 September 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, the evidence used as the basis for the separation was covered by the “Limited Use Policy”. The command learned of the use of drugs because the applicant sought emergency medical attention. The applicant went to the Charge of Quarters desk and called 911 because the applicant was afraid of an overdose. The applicant and a friend was transported to the hospital for life saving medical intervention. The applicant complied with all provisions of the “Limited Use Policy” by informing the commander and CID of all the facts and circumstances concerning the possible overdoes and disclosed all information to medical personnel. In a records review conducted on 3 June 2022, 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: 3 September 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 June 2019 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used morphine between on or about 10 December 2018 and on or about 13 December 2018. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 11 June 2019 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 July 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2016 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 106 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (13 September 2017 – 22 May 2019) f. Awards and Decorations: ARCOM, AAM, AAM-C-Device, NDSM, GWOTSM, ACM- CS, ASR, NATO MDL, Air Assault Badge, Sharpshooter Marksmanship Qualification Badge- Carbine Bar g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Developmental Counseling Form, dated 14 December 2018, reflects the applicant was counseled pertaining to an incident on 13 December 2018, at approximately 1800 hours. The counseling states the applicant approached the CQ desk while visibly and admittedly under the influence of drugs. The applicant stated he and another Soldier bought and used what the applicant believe was heroin, and that both had an adverse effect from it. A Drug Testing Program Testing Register, show a specimen was collected from the applicant due to probable cause (PO) on 13 December 2018, at 9:31 pm. (approximately 3 hours after the applicant admitted to using drugs). The drug testing results came back positive on 18 January 2019. FG Article 15, dated 16 April 2019, reflects the applicant wrongfully used morphine between on or about 10 December 2018 and on or about 13 December 2018. The punishment consisted of reduction to private first class/E-3; forfeiture of $1,052 pay; extra duty for 45 days; and restriction for 45 days, suspended, to be automatically remitted if not vacated on or before 31 May 2019. A Report of Mental Status Evaluation, dated 9 May 2019, reflects the applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal Statement, DD Form 214, Documents from the Separation Packet, Excerpt of Army Regulation 600-85 (The Army Substance Abuse Program) 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 600-85, paragraph 7-3a reflects Voluntary (self) ID is the most desirable method of discovering alcohol or other drug abuse. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek rehabilitation. The Soldier's unit commander must become involved in the evaluation process. Command policies will encourage Soldiers and civilian corps members to volunteer for assistance and will avoid actions that would discourage these individuals from seeking help. Normally Soldiers with an alcohol or other drug problem should seek help from their unit commander; however, they may initially request help from their installation ASAP, a MTF, a chaplain, or any officer or noncommissioned officer in their chain of command. If a Soldier initially seeks help from an activity or individual other than his or her unit commander, the individual contacted should immediately notify the Soldier's unit commander and installation ADCO. The Limited Use policy will apply when Soldiers seek help from any of the listed personnel or organizations. Paragraph 7-3c states: Identification resulting from a Soldier seeking emergency treatment for an actual or possible alcohol or other drug overdose, not subsequent to a traffic accident or criminal offense, is considered to be a variation of volunteering. For reporting purposes, such cases will be classified as self-referral. 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 Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contends the evidence used as the basis for the separation was covered by the “Limited Use Policy”. The applicant’s separation packet contains a Developmental Counseling Form, dated 1 4 December 2018, reflects the applicant was counseled pertaining to an incident on 13 December 2018, at approximately 1800 hours. The counseling states the applicant approached the CQ desk while visibly and admittedly under the influence of drugs. The applicant stated he and another Soldier bought and used what the applicant believe was heroin, and that both had an adverse effect from it. Approximately 3 hours after admitting to using drugs, the applicant was tested due to probable cause. Identification for drug use resulting from a Soldier seeking emergency treatment for an actual or possible alcohol or other drug overdose, not subsequent to a traffic accident or criminal offense, is considered to be a variation of volunteering. For reporting purposes, such cases will be classified as self-referral. This is limited use information as defined in AR 600-85. 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? No. The Board’s Medical Advisor, a voting member, reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. The applicant contends the evidence used as the basis for the separation was covered by the “Limited Use Policy”. The Board determined the possible overdose does not constitute the Limited Use Policy. Medical documentation, both military and VA, indicates that the applicant’s primary condition is a substance-related condition, Opioid Use Disorder, severe, a condition which existed prior to his military service. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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 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 of all the evidence before the Board, the applicant’s Opioid Use Disorder, severe did not excuse or mitigate the offenses of wrongfully using morphine. 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 AR20190012711 1