1. Applicant’s Name: a. Application Date: 28 January 2020 b. Date Received: 14 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). Without specific request, the applicant is considered for an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was inequitable because it was based on one isolated incident in 29 months of service with no other adverse action. AR 600-85 states in the instance of drug abuse, unit commanders must intervene and refer the Soldier to the ASAP based on the Soldier’s potential for continued military service in terms of professional skills, behavior, and potential for advancement. Upon the command learning the applicant violated the U.S. Army’s substance abuse and drug policy, the applicant was stripped of rank, referred to the ASAP and simultaneously separated from enlistment without the chance of rehabilitation. The applicant understands the wrongs of the behavior and accepts full responsibility of the actions. The applicant was a young Soldier, newly married with a young child, battling a divorce and custody agreements, and wrongly turned to self-medicating as the applicant did not feel comfortable speaking with mental health because the applicant was a member of the mental health team at the current duty station. Although the applicant was referred to ASAP, the applicant was not given the proper evaluation for continued military service. According to the applicant’s DD Form 214, the applicant was separated under AR 635- 200, paragraph 14-12c which states chapter process may be initiated only after an initial counseling for behavior and thereafter behaviors or actions continue (patterns of misconduct). During the separation process, the applicant made this known to the command to no avail. b. Board Type and Decision: In a records review conducted on 8 February 2023, 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: 6 May 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 February 2015 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for Tetrahydrocannabinol (THC), also known as marijuana, on or about 4 December 2014. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF / However, on 11 March 2015, the Staff Judge Advocate (SJA) reviewed the applicant separation packet and determined that it was legally sufficient. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 10 March 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 November 2012 / 3 years, 40 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68X10, Mental Health Specialist / 2 years, 5 months, 24 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Orders 099-0021, dated 9 April 2015, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 6 May 2015 from the Regular Army. The applicant’s Enlisted Record Brief (ERB), dated 7 May 2015, reflects the applicant was flagged for Involuntary Separation or Discharge (Field Initiated) (BA), effective 17 February 2015; was ineligible for reenlistment pending separation (9V). The applicant was reduced from E-4 to E-1 effective 29 January 2015. 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 Army Military Human Resource Record (AMHRR), 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 the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated with the applicant’s electronic signature. The applicant’s 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 contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends family issues affected behavior and ultimately caused the discharge. The applicant was not comfortable speaking with mental health because the applicant was a member of the mental health team. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends upon learning the applicant violated the substance abuse policy, the applicant was stripped of rank, referred to the ASAP and separated without the chance of rehabilitation. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The applicant contends a chapter process may be initiated only after an initial counseling for behavior and thereafter behaviors or actions continue. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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: none per medical review. However, the applicant does assert other behavioral health conditions and substance abuse, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board Medical Advisor found the only evidence of potential mental health conditions during service, including at the time of discharge, were by the applicant’s assertion. (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 assertion alone is worthy of consideration by the Board. However, the applicant’s active service medical records are void of any reference to a potentially mitigating condition, and there is otherwise no evidence of such a condition. A stand-alone substance abuse disorder would not be considered mitigating for the circumstances of discharge, and even when engaged in treatment on active duty no cannabis-related diagnosis was rendered. At the time of the misconduct, applicant attributed positive UA result to unintentional use. The Behavioral Health advisor is unable to establish any potential psychiatric mitigation associated with circumstances of discharge, therefore the discharged is not mitigated. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, and considering the opinion of the Board’s Medical Advisor, a voting member, the available evidence did not support a conclusion that the applicant’s asserted conditions outweighed the basis for applicant’s separation, Drug Abuse (THC), for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention, finding that Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The Board determined that by the use of illegal drugs the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends upon learning the applicant violated the substance abuse policy, the applicant was stripped of rank, referred to the ASAP and separated without the chance of rehabilitation. The Board considered this contention and determined that Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The applicant did not provide evidence, nor does applicant’s AMHRR contain any indication or evidence of arbitrary or capricious actions by the command. (3) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant abusing drugs is not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (4) The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. Due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, youthful indiscretion does not excuse the misconduct. There is insufficient evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that no relief was warranted and the General characterization is appropriate. (5) The applicant contends a chapter process may be initiated only after an initial counseling for behavior and thereafter behaviors or actions continue. The Board considered the contention and determined that Army Regulation 635-200, paragraph 14-12c permits separation for illegal drug use. The applicant did not provide evidence of the contrary, nor does applicant’s AMHRR contain any indication or evidence of arbitrary or capricious actions by the command. 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 contentions 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 asserted mental health issues did not excuse or mitigate the offense of illegal drug use and had no additional circumstances sufficient enough to outweigh the severity of the misconduct. 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 AR20200004876 1