1. Applicant's Name: a. Application Date: 28 May 2020 b. Date Received: 2 June 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. The applicant seeks relief contending, in effect, the "RO" code was used as the basis for all the urinalyses. The code "RO" is not usable for the characterization of service, according to Table 10-1 and paragraph 10-12a (1) of AR 600-85. b. Board Type and Decision: In a records review conducted on 21 April 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 characterization to Honorable. 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: 26 February 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 January 2016 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 January 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 8 February 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 July 2015 / 2 years b. Age at Enlistment / Education / GT Score: 21 / High School Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 2 years, 11 months, 1 day d. Prior Service / Characterizations: RA, 26 March 2013 - 6 July 2015 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Seventeen Developmental Counseling Forms for positive urinalyses and various acts of misconduct. Summarized Article 15 dated 28 August 2014, for failing to go at the time prescribed to the appointed place of duty on 13 August 2014 and being derelict in the performance of duties on 12 August 2014. The punishment consisted of extra duty and restriction for 14 days. Army Substance Abuse Program (ASAP) Enrollment form (page one only), dated (NIF), reflects the applicant was command-referred in the ASAP for nervousness and was also recommended by Fort Drum Behavioral Health. Serious Incident Report, dated 7 September 2015, reflects on 6 September 2016, the applicant sought assistance at Samaritan Medical Center for anxiety and depression, and multiple lacerations to the left forearm, was counseled, and was discharged with instructions for follow up care with Fort Drum Behavioral Health. The applicant was also removed from the unit deployment roster and moved to the rear detachment. Electronic Copy of DD Form 2624, dated 23 November 2015, reflects the applicant tested positive for THC 38 (marijuana), during a Rehabilitation Testing (RO) urinalysis testing, conducted on 12 November 2015. Electronic Copy of DD Form 2624, dated 2 December 2015, reflects the applicant tested positive for THC 256 (marijuana), during a Rehabilitation Testing (RO) urinalysis testing, conducted on 17 November 2015. Electronic Copy of DD Form 2624, dated 2 December 2015, reflects the applicant tested positive for THC 70 (marijuana), during a Rehabilitation Testing (RO) urinalysis testing, conducted on 18 November 2015. CID Report of Investigation - Initial Final, dated 22 December 2015, reflects an investigation determined the applicant committed the offenses of wrongful use of a controlled substance on 7 and 14 November when the applicant submitted urine specimens on 12, 17, and 18 November 2015, during the conduct of a unit urinalyses testing, which subsequently tested positive for Tetrahydrocannabinol (THC), the active ingredient contained in Marijuana. FG Article 15, dated 4 January 2016, for wrongfully using marijuana on three separate occasions (between 17 October and 17 November 2015; 18 October and 18 November 2015; and 12 October and 12 November 2015); failing to obey a lawful regulation on 6 November 2015; disobeying an NCO on 23 October 2015; and failing to go at the time prescribed to the appointed place of duty on three separate occasions on 6 November 2015 and 22 October 2015, the psychiatry appointment and the behavioral health appointment. The punishment consisted of a reduction to E-1 and extra duty for 30 days (suspended). Report of Mental Status Evaluation, dated 2 November 2015, reflects the applicant could understand and was cleared to 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 "AXIS I" diagnosis indicated "Psychoactive substance dependence - combination of drugs; Other problems related to employment." The MSE indicates the applicant was currently enrolled in ASAP with the cited diagnosis. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: MSE/BHE as described in previous paragraph 4h. Samaritan Medical Center Discharge Instruction for the applicant, dated 6 September 2015, reflects the applicant received an emergency care for laceration care and adjustment disorders, and was diagnosed with: "Self-Injurious Behavior; Adjustment Disorder w/Mixed Anxiety and Depression; Forearm Laceration; Depression." Report of Medical History dated 1 December 2015, the applicant noted behavioral health issues and the examining medical physician noted in the comments section: currently being treated with counseling and medication. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Notification memorandum; three Appendix M-Commander's Positive Notification Sheets; three Electronic Copy of DD Forms 2624; three DD Forms 2624; and Memorandum on Synopsis of Rehabilitation Efforts for the applicant. 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, paragraph 10-12a 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 Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the "RO" code was used as bases for the urinalyses the applicant submitted and basis for the discharge. The applicant AMHRR contains three separate Electronic Copies of DD Forms 2624, dated 23 November and two on 2 December 2015, reflecting the applicant had tested positive for THC 38 (marijuana), THC 256 (marijuana), and THC 70 (marijuana), respectively, each urinalysis was conducted during Rehabilitation Testing (RO) urinalyses testing, conducted on 12, 17, and 18 November 2015, respectively. The applicant's documentary evidence, a memorandum, dated 11 May 2020, rendered by the Clinical Director for Behavioral Health and SUDCC, provides the synopsis of rehabilitation efforts for the applicant during 23 September 2015 through 11 February 2016 and while enrolled in SUDCC Program by command referral. The AMHRR confirms the government had introduced into the discharge packet the results of biochemical tests, dated 12, 17, and 18 November 2015, coded RO (Rehabilitation). If it is determined the tests were part of the applicant's Army Substance Abuse Program (ASAP) treatment plan and are limited use information as defined in Chapter 10, AR 600-85, the use of the information mandates award of an honorable characterization of service. 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: Adjustment Disorder with anxiety; Depression; Psychoactive Substance Dependence, combination of drugs. VA-MDD (80% service-connection). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnoses of Adjustment DO and Depression were made while applicant was on active duty. Service connection by the VA for MDD establishes the condition occurred while applicant was in military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a partially mitigating BH condition, MDD. Review of the applicant's medical records indicate that polysubstance use began prior to entering service as did depressive symptoms of feeling overwhelmed. As such, it is not possible to determine if substance abuse preceded onset of depression or vice versa. In any event, it is more likely than not that the applicant's repetitive wrongful uses of marijuana are, at least in part, due to an underlying depressive disorder and are, therefore, partially mitigated. (Note-the diagnoses of Adjustment DO with anxiety and Depression are subsumed under the diagnosis of MDD). (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience did not outweigh the basis of separation. b. Response to Contention(s): The applicant contends the "RO" code was used as bases for the urinalyses the applicant submitted and basis for the discharge. The applicant AMHRR contains three separate Electronic Copies of DD Forms 2624. (Specimen Custody Document for Drug Testing), which showed the AMHRR confirms the government had introduced into the discharge packet the results of three biochemical tests, dated 12, 17, and 18 November 2015, coded RO (Rehabilitation), 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 and 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. 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 not to change the applicant's reason for discharge or accompanying SPD code, 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: Yes b. Change Characterization to: Honorable 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 AR20200008170 1