1. Applicant's Name: a. Application Date: 16 October 2019 b. Date Received: 21 October 2019 c. Counsel: 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 the applicant was unfairly discharged pursuant to AR 635-200, para 14-12c and did not wrongfully use a controlled substance. On 17 November 2017, the applicant participated in what the command stated was a unit wide drug sweep that called for the applicant to provide a urinalysis sample. On 1 December 2017, the applicant was told that the applicant's urine sample tested positive for cocaine. The applicant indicated having never consumed an illegal drug. The applicant commissioned an independent hair follicle test that reveals all drugs used for the past 90 days, which is also more accurate than a blood or urine sample. The hair follicle test came back negative for all drugs. During the Article 15 hearing, LTC G. would not consider the results of the independent hair follicle test and the applicant was found guilty of using cocaine; although the Article 15 documents stated that "You may present witnesses or any other evidence to show why you shouldn't be punished at all (matter of defense) or why punishment should be very light (matters of extenuation and mitigation)." Although it was stated that all the evidence presented by the applicant would be considered, the hair follicle test that clearly disproved use of cocaine was not considered in the hearing and as a result the applicant was separated from the Army. In a records review conducted on 22 June 2022, and by a 5-0 vote, the Board denied the request upon finding the accepted basis for separation, cocaine use, 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: 25 January 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 5 January 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 July 2016 / 3 years, 23 weeks b. Age at Enlistment / Education / GT Score: 28 / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92F10, Petroleum Supply Specialist / 1 year, 6 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 30 November 2017, reflects the applicant tested positive for COC 157 during an Inspection Unit (IU) urinalysis testing conducted on 17 November 2017. FG Article 15, dated 12 December 2017, for wrongfully using cocaine between 10 November 2017 and 17 November 2017. The punishment consisted of reduction toe E-1, forfeiture of $799.00 pay per month for two months, and extra duty and restriction for 45 days. Memorandum, dated 26 September 2018, to the applicant from the 43rd Military Police Detachment (CID) General Crimes Team Chief, indicating that on 25 September 2018, there office was notified by the Army Substance Abuse Program, that a unit urinalysis was conducted on 17 November 2017, which resulted in the applicant's specimen testing positive for the presence of a controlled substance. As a result, the applicant was listed as a subject for the offense of Wrongful Use of Cocaine in a U.S. Army Law Enforcement Report. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; enlisted record brief; DD Form 2624 and supporting documents; specimen custody document; developmental counseling form; report of proceedings under Article 15 UCMJ / appeals document; partial separation packet documents; several affidavits; letters of support; tracking letters from Military Law Center request information; and DD Form 214 and DD Form 215 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends that since discharge, the applicant has held numerous positions in the professional world. The applicant has worked as a sales representative, worked in an appointment center, and is currently employed. In addition to working, the applicant has finished school at the American Business and Technology University for Medical Administrative Assistant, coder and biller. 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. e. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years' active Federal service. Eligibility: Ineligible for enlistment. f. 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). 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 requests an upgrade to honorable. The applicant's available record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the complete facts and circumstances concerning the events which led to her discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c(2), by reason of misconduct (drug abuse), with a characterization of service of general (under honorable conditions). The applicant seeks relief contending, in effect, that the applicant was unfairly discharged pursuant to AR 635-200, para 14-12c and did not wrongfully use a controlled substance. On 17 November 2017, the applicant participated in what the command stated was a unit wide drug sweep that called for the applicant to provide a urinalysis sample. On 1 December 2017, the applicant was told that the applicant's urine sample tested positive for cocaine. The applicant indicated having never consumed an illegal drug. The applicant commissioned an independent hair follicle test that reveals all drugs used for the past 90 days, which is also more accurate than a blood or urine sample. The hair follicle test came back negative for all drugs. During the Article 15 hearing, LTC G. would not consider the results of the independent hair follicle test and the applicant was found guilty of using cocaine; although the Article 15 documents stated that "You may present witnesses or any other evidence to show why you shouldn't be punished at all (matter of defense) or why punishment should be very light (matters of extenuation and mitigation)." Although it was stated that all the evidence presented by the applicant would be considered, the hair follicle test that clearly disproved use of cocaine was not considered in the hearing and as a result the applicant was separated from the Army. It should be noted evidence submitted by the applicant indicates in an electronic copy of a DD Form 2624, dated 30 November 2017, that the applicant tested positive for COC 157 during an Inspection Unit (IU) urinalysis testing conducted on 17 November 2017. This method is used to test an entire unit or command or readily identifiable sub-unit or segment of a command, such as a platoon or staff section. Unit sweeps are an effective tool for the commander, but should not be conducted routinely. Commander's will not use a unit sweep to target an individual Soldier or small group of Soldiers they suspect of using drugs. The applicant's contentions were noted; however, the merit of these contentions cannot be established because the complete facts and circumstances leading to the discharge are unknown. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will be the applicant's responsibility to meet this burden of proof since the complete discharge packet is not available in the official record. 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 and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Generalized Anxiety Disorder (GAD). (2) Did the condition exist or experience occur during military service? Yes. The applicant is service-connected for GAD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the VA has diagnosed and service connected the applicant for GAD, this condition is not mitigating as review of the military medical records indicates that the applicant's anxiety symptoms developed as a result of the positive urinalysis for cocaine. There is no indication that the anxiety condition occurred prior to testing positive for cocaine on urinalysis. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): The applicant seeks relief contending, in effect, that the applicant was unfairly discharged pursuant to AR 635-200, para 14-12c and did not wrongfully use a controlled substance. The applicant commissioned an independent hair follicle test that reveals all drugs used for the past 90 days, which is also more accurate than a blood or urine sample. The hair follicle test came back negative for all drugs. The Board determined, with consult from the Board's Medical Advisor, that due to the time-frame of the cocaine use, the fair follicle test may not have caught it. Hair follicle tests are accurate up to 90 days, but not for the first couple weeks, due to the length of hair that is tested. 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(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 of all the evidence before the Board, the applicant's GAD did not excuse or mitigate the offenses of cocaine use because it was determined to be caused by and not causal to the drug abuse. 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 AR20190013600 1