1. Applicant’s Name: a. Application Date: 4 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 and a narrative reason and reentry code change. The applicant seeks relief contending, in effect, the discharge and reentry are inequitable. The applicant was discharged from the Army for illegal drug use. The applicant has never in the military career used marijuana or any other substance. The applicant believes the urinalysis screening was potentially compromised because of an article in the Military Times found by the applicant’s brother, Staff Sergeant B.T., reflecting cross contamination was a possibility at the time of the applicant’s urinalysis. The applicant believes the Army breached doctrine per the Uniform Code of Military Justice (UCMJ), which provides if a Soldier is found guilty of substance use, the Soldier is to be discharged as quickly as possible. The applicant was demoted, forfeited half month’s pay; and was under restriction for months for the alleged drug use. The applicant was informed it would be the extent of the applicant’s punishment. The applicant joined the Army at 18 years old with every intention of making it a career and fought to be the best Infantryman the applicant could be. There were very few things which would have led to the applicant’s discharge from the Army had it not been for the incident. The applicant intends to continue to serve the country in any way the applicant can. The applicant intends to use the G.I. Bill to become a clinical psychologist if the characterization is upgraded. The applicant aspires to work for the Department of Veterans Affairs (VA) to help Soldiers transition to civilian life. The applicant did not illegally consume marijuana and never used drugs recreationally. The applicant’s unit was undergoing a transformation to the 367th Joint Armor / Infantry. The applicant had a new company commander, who decided the applicant’s previous company was being lenient by deciding not to separate the applicant. The applicant believes this to be unjust and not a good representation of military practice under the UCMJ. The applicant was punished accordingly. Members of the applicant’s command believed the applicant when the applicant said the test was a false positive and decided not to process the applicant for separation. Another commander undermined the decision. Every Soldier from the applicant’s unit knew the applicant was a dedicated Soldier and recommended the applicant remain in the service, including the clearing noncommissioned officer and the battalion commander. The applicant was interviewed by the brigade commander and questioned about the applicant’s history of offenses. The applicant had forgotten about a previous traffic ticket and said nothing about it. The brigade commander believed the applicant had lied and approved the separation, but the applicant did not understand the question. The applicant is from a family of veterans and the applicant wanted nothing more than to serve the country. The applicant’s brother brought to the applicant’s attention the urine containers used by the Army have been potentially unsecure for years because of sealing issues. The discharge is unjust because the applicant was not discharged in a timely manner. A captain decided to relook at the applicant’s case and process the applicant for separation, although the applicant had been given verbal confirmation the applicant would remain in the service. b. Board Type and Decision: In a records review conducted on 20 January 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, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 31 October 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 September 2017 (2) Basis for Separation: The applicant was informed of the following reasons: Between 30 December 2016 and 30 January 2017, the applicant wrongfully used marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) / The intermediate commander recommended separation, but the separation be suspended for a period of 12 months. If separated the commander recommended a general (under honorable conditions) discharge. (4) Legal Consultation Date: On 21 September 2017, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 October 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 September 2015 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 1 month, 16 days / The applicant’s Army Military Human Resource Record (AMHRR) reflects the applicant served in the Air Force Reserve, but the AMHRR is void of the enlistment contract for the Air Force. d. Prior Service / Characterizations: USAFR, NIF – 11 June 2015 / NIF (Break in Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Drug Testing Program Testing Register, dated 29 January 2017, reflects the applicant provided a urine sample on 30 January 2017, as a part of an Inspection Unit (IU). Memorandum, dated 29 March 2017, reflects the applicant tested positive for THC 44 (marijuana), during a urinalysis testing, conducted on 30 January 2017. Field Grade Article 15, dated 19 May 2017, for wrongfully using marijuana (between 31 December 2016 and 29 January 2017). The punishment consisted of a reduction to E-1; forfeiture of $799 pay per month for two months; extra duty for 45 days; restriction for 45 days (suspended); and an oral reprimand. The applicant did not appeal the Article 15. Report of Mental Status Evaluation, dated 3 August 2017, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant provided an article, “Troop drug dismissals suspended due to lab contamination concerns,” dated 21 June 2018, reflecting the Defense Department temporally suspended all troop dismissals related to drug and alcohol misuse for two days because of concerns over laboratory testing procedures. The review revealed urine samples could possibly leak during shipping to the laboratory, but there was no indication any service member’s sample was affected. Three Developmental Counseling Forms, for testing positive on the urinalysis and being recommended for separation. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: None submitted with the application. 6. POST SERVICE ACCOMPLISHMENTS: DD Form 214; DD Form 293; self-authored statement; and Article “Troop drug dismissals suspended due to lab contamination concerns.” 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 and a narrative reason and reentry code change. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs to be changed. 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.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends the urinalysis which led to the discharge was a false positive. The applicant provided an article regarding possible contamination and urine samples. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the applicant’s urine sample was contaminated. The applicant’s AMHRR contains documents, which reflects the applicant submitted a urine sample during an Inspection Unit and tested positive for marijuana. The applicant contends being verbally informed by the applicant’s previous company commander the applicant would not be separated. Army Regulation 635-200, Paragraph 14-12c provides Soldiers who abuse illegal drugs will be processed for separation, which means separation action will be initiated and processed through the chain to the chain of command to the separation authority for appropriate action. The AMHRR is void of any evidence to show the separation authority decided to retain the applicant for the misconduct. The applicant contends good service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends not being separated in a timely manner. Army Regulation 635-200 provides processing time for separations when the notification procedure is used will not normally exceed 15 working days. Failure to process an administrative separation within these timeframes will not prevent separation or characterization of service. 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’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: Concussion without Loss of Consciousness (LOC); PTSD(70% SC). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnosis of concussion was made while the applicant was on active duty. The diagnosis of PTSD has been service connected by the VA which establishes that it occurred during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that, while the applicant has been diagnosed with Concussion w/o LOC and PTSD, neither of these conditions mitigates applicant’s misconduct primarily because both conditions occurred/developed several months after applicant submitted the THC+ urine sample. Regarding applicants in service diagnosis of Concussion w/o LOC, this event occurred in May 2017, 4 months after applicant submitted the THC positive urine sample. Regarding post- service diagnosis of PTSD, the VA based their PTSD diagnosis on the following traumatic stressors: 1) the MVA applicant experienced in May 2017; 2) applicant’s 5 May 2017 knee injury from combative training which the applicant reported applicants platoon sergeant “beat the shit out of me and ended up dislocating my knee…” While the writer appreciates the traumatic nature of these events, medical records indicate that both traumatic events occurred several months after the applicant submitted the THC-positive urine sample. (The THC+ sample was submitted in Jan 2017 and the positive results returned on 29 March 2017. Applicant’s MVA and knee injury both occurred in May 2017). Given that applicant’s misconduct (illicit THC use) preceded the occurrence of a head injury, car accident and knee injury, any potentially mitigating BH conditions which might arise from these events cannot be used to mitigate misconduct occurring before said events. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s Concussion w/o LOC and PTSD outweighed the basis for applicant’s separation – marijuana abuse– for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and determined a narrative reason change is not warranted as the applicant was separated for drug use and admitted to marijuana use on multiple occasions. The applicant was properly and equitably discharged. (2) The applicant requests a reentry eligibility (RE) code change. The Board considered this contention and voted to maintain the RE-code to a RE-4. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (3) The applicant contends the urinalysis which led to the discharge was a false positive. The Board considered this contention and determined there is insufficient evidence in the file to support the applicant’s claim that the urinalysis was a false positive as the applicant admitted to marijuana use on multiple occasions. The applicant was properly and equitably discharged. (4) The applicant contends being verbally informed by the applicant’s previous company commander the applicant would not be separated. 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 there is insufficient evidence in the file to support the applicant’s claim that the previous Commander informed the applicant they would not be separated. The applicant was properly and equitably discharged. (5) 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 marijuana abuse, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (6) The applicant contends not being separated in a timely manner. 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 Army Regulation 635-200 provides processing time for separations when the notification procedure is used will not normally exceed 15 working days. Failure to process an administrative separation within these timeframes will not prevent separation or characterization of service. (7) 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. 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 Concussion w/o LOC and PTSD did not excuse or mitigate the offenses of marijuana 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 AR20200005049 1