1. Applicant's Name: a. Application Date: 7 November 2019 b. Date Received: 15 November 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant through legal counsel requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was an isolated issue, and the characterization is unjust and unfair under the circumstances. The applicant believes mitigating circumstances surrounding the use of drugs show that this isolated incident does not support a characterization of a general (under honorable conditions) discharge. The applicant's father passed away. When this happened, the applicant took it so poorly that the applicant needed mental health treatment. The applicant was diagnosed with Adjustment Disorder with Disturbance of Emotions and Conduct. The applicant believes this diagnosis was also a mitigating factor; had the applicant not been suffering both emotionally and mentally, the applicant would not have used the marijuana the one time that the applicant did. The mental health issues mitigated the applicant conduct as well. b. Board Type and Decision: In a records review conducted on 3 August 2022, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length of service, one-time drug use, and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. 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: 21 August 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 June 2013 (2) Basis for Separation: The applicant was informed of the following reasons: for wrongfully using marijuana between on or about 8 December 2012 and on or about 8 January 2013 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 June 2013 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 July 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 January 2011 / 6 years, 23 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F10, Petroleum Supply Specialist 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: Electronic copy of the DD Form 2624, dated 29 January 2013, reflects the applicant tested positive for THC 46 during an Inspection Unit (IU) urinalysis testing conducted on 8 January 2013. Army Substance Abuse Program (ASAP) Enrollment, dated 30 January 2013, refers to the applicant having been referred for improper use of THC. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 14 June 2013, indicates the applicant was diagnosed with an Axis I for Adjustment Disorder with Disturbance of Emotions and Conduct. It was noted that the applicant could understand and participated in administrative proceedings, appreciated the difference between right and wrong, and met medical retention requirements (i.e., did not qualify for a Medical Evaluation Board). The applicant was assessed by the Army Substance Abuse Program in February due to the use of Marijuana. The applicant met medical retention standards per AR 40-501. The applicant was cleared for administrative separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; and attachments; self-authored statement; resume; certificate for Bachelor of Science in Criminal Justice degree; partial documents from separation packet (i.e., letter of support and report of mental status evaluation); and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends since being discharge he has graduated college with a Bachelor of Science in Criminal Justice and has been gainfully employed. He started his career post-discharge in sales and customer service and since graduating from college, he has been employed by Ally Financial. 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 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). f. 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. 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 through legal counsel requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record (AMHRR) indicates separation action was initiated against the applicant for wrongfully using marijuana between on or about 8 December 2012 and on or about 8 January 2013. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." The applicant seeks relief contending that the discharge was an isolated issue, and the characterization is unjust and unfair under the circumstances. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. It should also be noted by violating the Army's policy not to possess or use illegal drugs, the applicant compromised the 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 and diminished the quality of the applicant service below that meriting an honorable discharge The applicant contends the applicant's father had passed away and, when this happened, the applicant took it so poorly that the applicant needed mental health treatment. The applicant was diagnosed with an Adjustment Disorder with Disturbance of Emotions and Conduct. The applicant believes this diagnosis was also a mitigating factor; had the applicant not been suffering both emotionally and mentally, the applicant would not have used the marijuana the one time that the applicant did. The mental health issues mitigated the applicant conduct as well. The applicant's contention was noted; the applicant Report of Mental Status Evaluation, dated 14 June 2013, indicates the applicant was diagnosed with an Axis I for Adjustment Disorder with Disturbance of Emotions and Conduct. It was further noted that the applicant could understand and participate in the administrative proceedings, appreciate the difference between right and wrong, and met the medical retention requirements (i.e. did not qualify for a Medical Evaluation Board). The applicant was assessed by the Army Substance Abuse Program in February due to the use of Marijuana. The applicant met medical retention standards per AR 40-501. The applicant was cleared for any administrative separation deemed appropriate by the chain of command. Additionally, the applicant had many legitimate avenues through which to obtain assistance or relief, and there is no evidence in the record that the applicant ever sought such assistance before committing the misconduct which led to the separation action under review. 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: Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with an Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant's misconduct is not a progression or sequela of the diagnosis. Moreover, the diagnosis does not render an individual unable to make conscious choices, understanding the consequences. (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 the applicant's Adjustment Disorder completely outweighed the basis for applicant's separation - Drug Abuse. b. Response to Contention(s): (1) The applicant seeks relief contending that his discharge was an isolated issue, and the characterization is unjust and unfair under the circumstances. The Board determined this contention was valid, and part of the reason the upgrade was warranted is the one-time use. (2) The applicant contends the applicant's father passed away. When this happened, the applicant took it so poorly that mental health treatment was needed; and if the applicant not been suffering both emotionally and mentally, the applicant would not have used the marijuana the one time. The Board considered this contention and determined that while the Army has many legitimate avenues available to service members requesting assistance with loss, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The applicant abusing drugs is not an acceptable response to dealing with loss. However, due to the applicant's one-time use, length of service, and post-service accomplishments, the drug usage was outweighed, and relief was warranted. c. The Board determined the discharge is inequitable based on the applicant's length of service, one-time drug use, and post-service accomplishments. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's one-time drug use was outweighed by the applicant's length of service and post-service accomplishments. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20190014786 1