1. Applicant's Name: a. Application Date: 30 January 2020 b. Date Received: 3 February 2020 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 under other than honorable conditions. The applicant requests an upgrade to honorable conditions or general (under honorable conditions). Counsel for the applicant seeks relief contending, in effect, the applicant served in the Army from September 2001 to February 2006 and was discharged from the Army under "other than honorable conditions. The applicant was an exemplary Soldier prior to the applicant unfortunate discharge. The applicant's DD Form 214 shows applicant received many honors during the applicant service. The applicant was ultimately discharged for possessing and smuggling an illegal substance - Psilocybin Mushrooms. Specifically, while off-duty, the applicant traveled to the Netherlands, with two other soldiers, and legally purchased two boxes of the substance ($12.00/box) with the intent to personally consume. The applicant was found not to have consumed the substance. Upon crossing the Germany border, they were stopped and asked if they had possession of illicit drugs. Out of the three soldiers, the applicant was the only one who spoke up and admitted they purchased the substance and that it was in their car. During the investigation, the applicant admitted that applicant knew purchasing the substance was illegal and immediately felt deep regret for the actions and in a letter written to LTC W. the applicant took full responsibility for applicant's actions and realized that the applicant acted in an immature manner and the applicant would "pay dearly" for this one mistake. Upon review of the records surrounding the applicant's discharge, there were three different recommendations as to the disciplinary action to be taken. The investigation record shows no reasoning as to why the applicant could not be rehabilitated or further treated so the applicant could continue performing duties and serve applicant's country. Finally, before the final processing of the applicant discharge, the applicant submitted a petition with 25 signatures of fellow soldiers attesting that applicant should not be discharged and that "duty performance" makes the applicant a soldier worth rehabilitating. Despite these recommendations, the applicant was given the more severe penalty. Following the applicant involuntary separation, the applicant has led a life of guilt, regret, and shame surrounding military service despite four years of exemplary service. The applicant made one mistake and that one mistake should not punish him for the rest of applicant's life. The applicant admitted the mistake, was open and honest throughout the investigation and took full responsibility for applicant's actions. The applicant has lived with the consequences for 15 years. b. Board Type and Decision: In a records review conducted on 26 April 2022, and by a 4-1 vote, the Board determined the discharge is inequitable based on the totality of applicant's service record. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General 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 / Under Other Than Honorable Conditions b. Date of Discharge: 16 February 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 January 2004 / on 13 January 2005, the Unit Commander notified the applicant of intent to separate with a General (Under Honorable Conditions) Discharge. (2) Basis for Separation: The applicant was informed of the following reasons: for possessing Psilozybin Mushrooms, a controlled substance. (3) Recommended Characterization: The Battalion and Brigade Commanders recommended a General (Under Honorable Conditions) Discharge. (4) Legal Consultation Date: 13 January 2005 / The applicant waived the right to consult with legal counsel. (5) Administrative Separation Board: 13 January 2005 / The applicant waived the right to appear before an administrative separation board. (6) Separation Decision Date / Characterization: 8 February 2005 / Under Other Than Honorable Conditions. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 September 2001 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91W10, Health Care Specialist / 3 years, 4 months, 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / Iraq (27 April 2003-10 July 2004) f. Awards and Decorations: ARCOM-2, AAM, PUC (ARMY), NDSM, GWOTEM, GWOTSM, ASR, CMB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation - Initial Final/Joint, dated 6 October 2004, reflects an investigation established probable cause to believe the applicant committed the offense of Wrongful possession of hallucinogens and wrongful smuggling of hallucinogens on 30 September 2004. FG Article 15, dated 1 November 2004, for wrongfully possessing 430 grams of Psilozybin Mushrooms, a controlled substance. The punishment consisted of a reduction to E-1; forfeiture of $596.00 pay per month for two months; and extra duty for 45 days; and restriction to the limits of Smith Barracks for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 24 November 2004, reflects the applicant was diagnosed with Antisocial Traits but 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. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Legal Brief with all listed enclosures; copies of military personnel records; case separation packet; Enlisted Records Brief; five third-party letters. 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 3-7c 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. (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 conditions or general (under honorable conditions). The applicant's Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. Counsel for the applicant contends, in effect, the applicant had good service. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. Counsel for the applicant contends, in effect, there were two general (under honorable conditions) recommendations for discharge and one under other than honorable conditions discharge, yet the applicant received the more severe punishment. Further, the investigation record shows no reasoning as to why the applicant could not be rehabilitated or further treated so the applicant could continue performing duties and serve applicant's country. AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. After reviewing the applicant's discharge packet, the separation authority properly waived the rehabilitative requirements. Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. Counsel for the applicant contends youth and immaturity affected the applicant's behavior that led to the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. Counsel for the applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 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 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. Response to Contention(s): (1) Counsel for the applicant contends good service. The Board considered this contention and, in view of applicant's numerous awards and combat service, did find that applicant's service does warrant upgrade to General characterization of service. However, the Board did not find applicant's service rose to the meritorious standard warranting upgrade to Honorable. (2) Counsel for the applicant contends there were two general (under honorable conditions) recommendations for discharge and one under other than honorable conditions discharge, yet the applicant received the more severe punishment. Counsel contends the investigation record shows no reasoning as to why the applicant could not be rehabilitated or further treated so he could continue performing his duties and serve his country. The Board considered this contention but determined that the applicant's possession of a controlled substance is a serious offense permitting separation under AR 635-200, Chapter 14c. The Board did however agree with the recommendations for General discharge, finding that the totality of applicant's service warrants upgrade to that characterization. (3) Counsel for the applicant contends youth and immaturity affected the applicant's behavior that led to the discharge. The Board considered this contention and determined that applicant's youth and immaturity did not outweigh applicant's drug possession misconduct. (4) Counsel for the applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and determined that the serious nature of the offense, transporting a controlled substance across an international border, is serious misconduct warranting separation. c. The Board determined the discharge is inequitable based on the totality of applicant's service record. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General 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. 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 because, applying liberal consideration of all the evidence before the Board, the applicant's totality of service, including combat service, warranted upgrade. The Board did not find that applicant's conduct, including drug possession, was of a level of meritorious service warranted for an upgrade to Honorable discharge. (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: General 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 AR20200004146 1