1. Applicant’s Name: a. Application Date: 4 March 2020 b. Date Received: 10 March 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 under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, the reason for the discharge is the Army thought the applicant was selling drugs, because a Soldier who failed a drug test, stated being with the applicant. Two other Soldiers who were interviewed by the CID, were repeatedly asked if the drugs were obtained from the applicant. The CID kept insisting and offered the Soldiers an honorable discharge if the applicant was implicated by sworn statements. The CID made the applicant the fall person. The applicant, in over three years of service, never failed a drug test. The investigation continued over a year and the applicant never failed the monthly drug tests. The applicant was never charged and forced to accept the discharge or be subjected to continued harassment from the CID. The applicant lives with and helps the elderly grandmother. The applicant is a third-year apprentice plumber, married, and has not been in any trouble. b. Board Type and Decision: In a records review conducted on 22 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 / Under Other Than Honorable Conditions b. Date of Discharge: 24 March 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 February 2017 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully possessed, used, and distributed cocaine. The applicant wrongfully possessed, used, and distributed MDMA/ecstasy. Additionally, the applicant obstructed justice by destroying evidence. On 11 May 2015, the applicant failed to obey a lawful general regulation by wrongfully having an unregistered weapon in the barracks room. Also, on divers occasions, between 18 March and 13 July 2016, the applicant failed to report to the appointed place of duty at the time prescribed. Lastly, on 3 August 2016, the applicant assaulted by shoving with the hands PVT R. V. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 22 February 2017 and 9 March 2017 (5) Administrative Separation Board: On 22 February 2017, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 23 February 2017, the applicant’s conditional waiver was denied. On 7 March 2017, the GCMCA referred the case to an administrative separation board. On 8 March 2017, the applicant was notified to appear before an administrative separation board and advised of rights. On 9 March 2017, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 16 March 2017 / Under Other Than Honorable Conditions (On 16 March 2017, the GCMCA accepted the applicant’s unconditional waiver of an administrative separation board.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 January 2014 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 3 years, 2 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Record, dated 21 July 2016, rendered by Chief, Occupational Therapy, Madigan Army Medical Center, lists six dates between March and July 2016, the applicant did not show for appointments with the Occupational Therapy Clinic. Commander’s Report, dated 22 February 2017, reflects the applicant received an Article 15 stated to be included at enclosure 3; however, none was included in the case separation packet. The applicant’s Enlisted Record Brief (ERB), dated 27 March 2017, reflects the applicant was reduced from E-3 to E-1, effective 16 March 2017. Seven Developmental Counseling Forms for missed appointments, adverse actions, and acts of misconduct. CID Reports of Investigation - Initial through 3rd Status, dated in May through November 2016, reflect an investigation established probable cause to believe the applicant committed the offense of Wrongful Use, Possession, and distribution of a Controlled Substance. CID Report of Investigation – 1st Corrected Final/Joint, dated 14 May 2017, reflects an investigation established probable cause to believe the applicant committed the offenses: distribution of cocaine; distribution of MDMA; introduction of cocaine with intent to distribute; possession of MDMA with intent to distribute; wrongful use of cocaine; wrongful use of MDMA; and obstruction of justice. The report reflected there was sufficient evidence to provide the command for disciplinary action. Report of Mental Status Evaluation (MSE), dated 23 January 2017, reflects the applicant was cleared from a behavioral health perspective for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mTBI with negative results. The MSE findings reflect a command referral to ASAP is indicated because of the nature of offense, and there is no other substance abuse history noted in records or interview. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; and third-party letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is employed as an apprentice plumber and has not been in any trouble. 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) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (7) Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14- 12a or 14-12b as appropriate. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKK” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, 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 general (under honorable conditions). The applicant’s Army Military Human Resource Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends, in effect, the discharge based on being suspected of selling drugs and never failing a drug test, was never charged but forced to accept the discharge. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. A CID Report reflecting an investigation of drug related offenses occurring between 31 October 2015 and 13 February 2016, was finalized based on finding sufficient evidence to provide to the command for disciplinary action. There was no response from the applicant upon being provided notice and the opportunity for a rebuttal. The applicant contends, in effect, obtaining employment, caring for a grandparent, and had not been in any trouble. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The third-party statement provided with the application speak highly of the applicant’s character and performance. The Board will consider the applicant’s 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 Traumatic Brain Injury (TBI). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant suffered a head injury while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a behavioral health condition, mild TBI, which mitigates some of the misconduct. As there is an association between TBI and use of illicit drugs to self-medicate symptoms, there is a nexus between the applicant’s diagnosis of TBI and use of cocaine and MDMA. TBI does not, however, mitigate the offenses of distribution of drugs, obstruction of justice, failure to report on multiple occasions and bringing an unregistered handgun onto base given that mild TBI does not affect one’s ability to distinguish right from wrong and act in accordance with the right. (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 TBI outweighed the basis for applicant’s separation – distribution of drugs, obstruction of justice, failure to report on multiple occasions and bringing an unregistered handgun onto base – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends while the discharge is based on being suspected of selling drugs, the applicant never failed a drug test and was never criminally charged but was forced to accept the discharge. The Board voted not to change the applicant’s characterization of service despite applying liberal consideration of all the evidence before the Board. While the applicant’s TBI mitigated the allegations of the use of illegal drugs, the remaining offenses of distribution of drugs, obstruction of justice, failure to report on multiple occasions and bringing an unregistered handgun onto base had no medical mitigation or additional circumstances sufficient to outweigh the severity of the misconduct. The Board also found that the applicant waived administrative separation and pled guilty to the charges twice, which contradicts the applicant’s current statement. (2) The applicant contends obtaining employment, caring for a grandparent, and has not been in any trouble. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. In this case, the Board considered this contention and determined that the applicant’s post-service accomplishments did not outweigh the unmitigated misconduct and the discharge was proper and equitable. (3) The third-party statement provided with the application speak highly of the applicant’s character and performance. 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 distribution of drugs, obstruction of justice, failure to report on multiple occasions and bringing an unregistered handgun onto base, 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, considering 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 despite applying liberal consideration of all the evidence before the Board. While the applicant’s mTBI mitigated the offenses of the applicant’s drug use, the remaining offenses of distribution of drugs, obstruction of justice, failure to report on multiple occasions and bringing an unregistered handgun onto base had no medical mitigation or additional circumstances sufficient 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 AR20200005592 1