1. Applicant's Name: a. Application Date: 05 March 2020 b. Date Received: 9 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 general (under honorable conditions). The applicant requests an upgrade to honorable conditions and a narrative reason change. The applicant seeks relief contending, in effect, the applicant enlisted in the United States Army for a period of 4 years from 2014-2018 consecutively. Applicant served at Fort Bragg, NC, and Fort Wainwright respectively. After returning from a 9-month rotational deployment with 1-17 Calvary Regiment the applicant reenlisted for an additional 5 years in Fort Wainwright, AK. This action prompted a series of difficulties with the applicant's former spouse that culminated with the spouse's departure and separation from the applicant's child. As a result, the applicant experienced severe financial difficulties that prompted the applicant to attain additional employment. These additional duties often left the applicant exhausted and thereby negatively influenced effectiveness on the job. The series of events that ensued caused the applicant to make the questionable decision of smoking marijuana in duress that ultimately led to discharge. Due to the overwhelming guilt the applicant experienced, the applicant confessed this event to leadership and was referred to the Army Substance Abuse Program. In reflection, the applicant understood and acknowledged the mistake that was made and ultimately was punished for. The applicant is requesting a shift from General (Under Honorable Conditions) to Honorable. Additionally, the applicant is requesting a change in the Narrative Reason for Separation from Misconduct to Secretarial Authority. This request is based on the circumstances in lieu of the applicant's overall military record. Moreover, the applicant came forward promptly with the indiscretion to get the aid that was desperately needed at the time. Although the applicant was cited for the infraction that ultimately led to discharge, the applicant does not possess a habitual record of misconduct or any pattern of corrective training. In contrast, outside of these infractions the applicant received numerous commendations from superiors for exemplary service and commitment to occupation. Based on this information, the applicant states should be favorably considered for this upgrade with the opportunity to further education and pursue overarching goal of becoming a Corrections Officer. See Note in Summary of Facts b. Board Type and Decision: In a records review conducted on 17 March 2023, and by a 5 - 0 vote, the Board determined the discharge was improper due to the Government's introduction of limited use evidence. Accordingly, the Board voted to grant relief by changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to 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 / General (Under Honorable Conditions) b. Date of Discharge: 13 August 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 June 2018 (2) Basis for Separation: The applicant was informed of the following reasons: for committing a serious offense for which the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or closely related offence under the MCM. Specifically, between on or about 2 February 2018 and on or about 2 March 2018, the applicant wrongfully used marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 24 July 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 June 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 October 2014 / 3 years, 22 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 3 years, 9 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea f. Awards and Decorations: AAM, GCM, NDSM, GWOTSM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: One Developmental Counseling Form, for a failed urinalysis. Receipt for Pre-Trial/Post-Trial Prisoner or Detained Person, dated 2 May 2018, reflects the applicant was charged with wrongful use, possession, distribution of a controlled substance and failure to obey a lawful order. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 13 June 2018, reflects the applicant was diagnosed with substance abuse disorder (per AHLTA) but was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; self-authored statement; two third-party letters; ERB; copies of military personnel records. 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 600-85 defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10-13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy includes: Results of command-directed drug or alcohol testing that are inadmissible le under the MRE; Results of a drug or alcohol test collected solely as part of a safety mishap investigation undertaken for accident analysis and the development of countermeasures; Information concerning drug or alcohol abuse or possession of drugs incidental to personal use, including the results of a drug or alcohol test, collected as a result of a Soldier's emergency medical care solely for an actual or possible alcohol or other drug overdose; A Soldier's self-referral to BH for SUD treatment; Admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to treatment and provided by Soldiers as part of their initial entry into SUD treatment; Drug or alcohol test results, if the Soldier voluntarily submits to a DoD or Army SUD treatment before the Soldier has received an order to submit for a lawful drug or alcohol test; and, the results of a drug or alcohol test administered solely as a required part of a DoD or Army SUD treatment program. e. 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 3-8a states A Soldier is entitled to an honorable characterization of service if limited-use evidence (see AR 600-85) is initially introduced by the Government in the discharge proceedings, and the discharge is based upon those proceedings. The separation authority will consult with the servicing Judge Advocate in cases involving limited use evidence. (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. f. 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). g. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the 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 separation authority is not bound by the recommendations of the initiating or intermediate commander and has complete discretion to direct any discharge and characterization of service authorized by the applicable provisions of the regulation as stated in Army Regulation 635-200, chapter 2-2c. The applicant contends good service. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. Army Regulation 635-200, paragraph 3-5c 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. 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 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. Note: The applicant states informed leadership of use of marijuana and was referred to the Army Substance Abuse Program, however, record is void of the referral. The applicant's separation packet contains three electronic DD Forms 2624 (Specimen Custody Document for Drug Testing), which show one of the urinalysis tests coded "RO," which indicates "Rehabilitation Testing." The government introduced these documents into the discharge process, revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. The Rehabilitation Testing is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. Note: In a Memorandum dated 15 March 2023, Legal Review, it is the opinion that the 28 March 2018 positive THC test result is Limited Use evidence that was improperly considered by the chain of command and therefore, it is the recommendation that the applicant's discharge be upgraded from a General (Under Honorable Conditions) discharge to an Honorable discharge. 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): Relief was granted because - The applicant's separation packet contains three electronic DD Forms 2624 (Specimen Custody Document for Drug Testing), which show one of the urinalysis tests coded "RO," which indicates "Rehabilitation Testing." The government introduced these documents into the discharge process, revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. The Rehabilitation Testing is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. c. The Board determined that IAW with AR 600-85 and AR 600-35 limited use evidence was introduced by the government into the separation packet and the Characterization of Service will be upgrade to Honorable as required by regulation. 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 Honorable because, limited use evidence was used in the administrative separation proceedings. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions), thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN because considering the applicant's overall length and quality of service to include an operational deployment the misconduct was a minor infraction. (3) The RE code will change to RE-3, which is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/ JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, Chapter 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 AR20200006081 1