1. Applicant’s Name: a. Application Date: 6 February 2020 b. Date Received: 10 February 2020 c. Counsel: None 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 requests an upgrade to honorable conditions. The applicant seeks relief contending, in effect, the handling of the discharge at Battalion and Company level was improper and not thorough. The applicant states CID was not willing to look into the details of the arrest, meaning authorities claimed the applicant was caught with marijuana, but it was CBD instead, which is legal in Tennessee. The applicant states the CBD was purchased for various health and mental health reasons, not for personal gain. The applicant states the company denied him the ASAP program after the second arrest for CBD. They claimed the urine analysis showed THC and CBD, when it was only trace amounts of THC present. The applicant states the company showed no regard to the applicant’s mental health at the time of separation. The applicant states the denial of an honorable discharge is a stain on the applicant’s record and brings shame to the applicant’s family of Army personnel from the father serving in Vietnam to brothers who are currently serving. The applicant states the family has strived to serve the country in honor of American values and freedom. The applicant wishes to have benefits reinstated to be able to attend school and continue with life. The applicant states the discharge has put the applicant in a position of failure and made the applicant feel as though the years that were served have not been accounted for. b. Board Type and Decision: In a records review conducted on 2 December 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: 17 June 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 December 2018 (2) Basis for Separation: The applicant was informed of the following reasons: for attempting to enter the Fort Campbell Installation through Gate 7 while driving privileges were suspended/revoked on 29 June 2018, for wrongfully possessing approximately two grams of marijuana on 29 June 2018, for wrongfully using marijuana between on or about 24 April 2018 and on or about 23 May 2018 and for wrongfully using marijuana between on or about 11 December 2017 and on or about 9 January 2018. The applicant was identified as a drug abuser. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 28 December 2018 (5) Administrative Separation Board: 28 December 2018 / The applicant waived the right to an administrative separation board. (6) Separation Decision Date / Characterization: 22 May 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 April 2017 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 106 c. Highest Grade Achieved / MOS / Total Service: E-2 / 11C10, Indirect Fire Infantry / 2 years, 1 month, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Developmental Counseling Forms, for testing positive for THC and for violation of UCMJ Article 112a (Possession and use of Controlled Substance). Army Substance Abuse Program (ASAP) Enrollment form, dated 4 April 2018, reflects the applicant was command-referred in the ASAP. Law Enforcement Report – Initial - Final, dated 6 July 2018, reflects an investigation established the applicant committed the offense of Wrongful Possession of Marijuana and Wrongful Use of Marijuana. The applicant waived his rights and confessed to possession of marijuana and consuming marijuana two or three weeks prior. Army Substance Abuse Program (ASAP) Enrollment form, dated 12 July 2018, reflects the applicant was command-referred in the ASAP. Report of Mental Status Evaluation, dated 27 July 2018, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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), 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. 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 requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the handling of the discharge at Battalion and Company level was improper and not thorough to include CID’s unwillingness to look further into the details surrounding the arrest. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the company showed no regard to the applicant’s mental health at the time of separation. The applicant also contends the company denied ASAP program. The applicant’s AMHRR contains no documentation of a mental health diagnosis. The applicant did not submit any independent documentation, other than the applicant’s statement, to support the contention the discharge resulted from a medical condition. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 27 July 2018, which indicates the applicant was mentally responsible and could recognize right from wrong. The MSE does not indicate any diagnosis. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran’s benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends good service. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. 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 that the applicant has the following potentially-mitigating diagnoses/experiences: Mild TBI without loss of consciousness (LOC), also known as concussion. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant incurred the head injury while in the service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that there is an association between TBI and use of illicit drugs to self-medicate symptoms, so there is a nexus between the applicant’s TBI in Jan 2018 and the use of marijuana in April-May 2018. That drug use is medically mitigated. The applicant’s marijuana use prior to the concussion and possession of 3.5 grams of marijuana are not mitigated, since the preceded the applicant’s mild TBI and there is no other mitigating conditions or experiences for the Board’s consideration. (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 mTBI outweighed the applicant’s drug use and possession that pre-dated the head injury. b. Response to Contention(s): (1) The applicant contends the handling of the discharge at Battalion and Company level was improper and not thorough to include CID’s unwillingness to look further into the details surrounding the arrest. The Board considered this contention but was unable to determine if it had any merit due to lack of substantiating evidence provided by the applicant. Official records clearly display marijuana use and possession by the applicant, and there is no evidence in official records or sufficiently supported and provided by the applicant to convince the Board that an impropriety or inequity occurred in the discharge process. (2) The applicant contends the company showed no regard to the applicant’s mental health at the time of separation. The applicant also contends the company denied the ASAP program. The Board considered this contention and determined that official records contradict the applicants claim. The applicant’s command tried to work with the applicant in the forms of non-judicial punishment and ASAP referrals (April, May, July 2018) prior to separation. Due to the applicant’s possession and use prior to the mTBI diagnoses, and no other potentially- mitigating circumstances or conditions for consideration, the Board voted that the discharge was proper and equitable. (3) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (4) The applicant contends good service. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By possessing and using marijuana, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. 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, the applicant’s mTBI did not mitigate the offenses of drug use and possession prior to the incident, though it did mitigate the marijuana use of April/May 2018. 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, and 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 AR20200003764 1