1. Applicant's Name: a. Application Date: 18 February 2020 b. Date Received: 25 February 2020 c. Counsel: 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. The applicant requests an upgrade to general (under honorable conditions). Representative for the applicant seeks relief contending, in effect, the applicant's active-duty medical records clearly show that on 16 Nov 2018, the applicant reported depression, feeling purposeless, angry, and frustrated, struggling to work or otherwise function normally. This was not properly addressed or recognized by the applicant's unit as having prevalent mental health issues that needed to be addressed. Instead, the applicant's unit focused on the substance abuse and not the root cause of this sudden substance abuse and the applicant was chaptered out of the military. Since the applicant's discharge from service, the condition has continued to get worse because the applicant still has not been able to get the help needed due to being given an Other than Honorable Conditions discharge by the military (thus making the applicant ineligible to being seen from the Department of Veterans Affairs). The applicant is unable to afford mental health attention elsewhere. The applicant's Department of Veterans Affairs rating dated 3 Nov 2021, has finally been approved for medical purposes only as they were able to determine that there is a significantly high probability that the military service was the contributing factor to the applicant mental health and other medical conditions. b. Board Type and Decision: In a records review conducted on 24 March 2023, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length, quality and combat service that partially outweigh the misconduct. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. 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: 14 October 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 September 2019 (2) Basis for Separation: The applicant was informed of the following reasons: between on or about 3 December 2018 and 3 January 2019, the applicant wrongfully used marijuana, between on or about 6 October 2018 and 6 November 2018, the applicant wrongfully used marijuana and between on or about 3 December 2017 and 3 January 2018, the applicant wrongfully used marijuana. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 September 2019 / The applicant voluntarily and unconditionally waived consideration and a personal appearance of the case by an administrative separation board. (5) Administrative Separation Board: On 12 September 2019, the applicant waived consideration of the case by an administrative separation board. (6) Separation Decision Date / Characterization: 23 September 2019 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 February 2017 / 5 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92Y10, Unit Supply Specialist / 5 years, 1 month, 19 days d. Prior Service / Characterizations: RA, 13 May 2014 - 9 February 2017 / HD (Concurrent Service) e. Overseas Service / Combat Service: Korea, SWA / Kuwait (8 March 2015 - 7 March 2016) f. Awards and Decorations: ARCOM, AAM, GCM, NDSM, NCOPDR, OSR g. Performance Ratings: 1 June 2017 - 11 April 2018 / Qualified h. Disciplinary Action(s) / Evidentiary Record: 11 Developmental Counseling Forms, for various acts of misconduct. Electronic copy of the DD Form 2624, dated 17 January 2018, reflects the applicant tested positive for THC-70 during an Inspection Unit (IU) urinalysis testing conducted on 3 January 2018 Law Enforcement Report - Initial - Final, dated 12 February 2018, reflects an investigation established the applicant committed the offense of Wrongful Use of Marijuana - Detected by Urinalysis. FG Article 15, dated 29 March 2018, for wrongfully using tetrahydrocannabinol (THC), a schedule II-controlled substance between on or about 3 December 2017 and 3 January 2018. The punishment consisted of a reduction to E-4; forfeiture of $652 pay per month for two months (suspended) to be automatically remitted if not vacated on or before 11 October 2018; and extra duty for 45 days and restriction to the limits of company area, dining/medical facility, and place of worship for 45 days. Electronic copy of the DD Form 2624, dated 11 December 2018, reflects the applicant tested positive for THC-57 during an Inspection Random (IR) urinalysis testing conducted on 6 November 2018. Law Enforcement Report - Initial - Final, dated 21 December 2018, reflects an investigation established the applicant committed the offense of Wrongful Use of Marijuana - Detected by Urinalysis. FG Article 15, dated 16 January 2019, for wrongfully using tetrahydrocannabinol (THC), a schedule II-controlled substance between on or about 6 October 2018 and on or about 6 November 2018. The punishment consisted of a reduction to E-2 (suspended) to be automatically remitted if not vacated on or before 17 March 2019; forfeiture of $942 pay per month for one month (suspended) to be automatically remitted if not vacated on or before 17 March 2019; extra duty for 45 days (suspended) to be automatically remitted if not vacated on or before 17 March 2019; and restriction to the limits of company area, dining/medical facility, and place of worship for 45 days (suspended) to be automatically remitted if not vacated on or before 17 March 2019. Electronic copy of the DD Form 2624, dated 28 January 2019, reflects the applicant tested positive for THC-127 during an Inspection Unit (IU) urinalysis testing conducted on 3 January 2019. Memorandum, subject: Commander's Notification and Required Response to a Positive Drug Test, dated 29 January 2019, reflects the applicant tested positive for THC 127 on a urinalysis conducted on 3 January 2019. Report of Mental Status Evaluation, dated 2 November 2018 and 3 September 2019, reflects the applicant 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. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Representative for the applicant provided a copy of a VA disability rating decision, date 3 November 2021, reflecting the applicant was rated, for treatment purposes only, for left shoulder strain, left wrist, carpal tunnel syndrome, lumbosacral strain, right knee strain, right wrist, carpal tunnel syndrome, unspecified depressive disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Listed Enclosures; DD Form 214; DD Form 215; copies of military personnel records; self-authored statement; two third-party letters; medical records; ERB. 6. POST SERVICE ACCOMPLISHMENTS: applicant reports being enrolled in college at Fayetteville Technical Community College. 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 3-7c 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. (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. 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. Representative for the applicant contends, the applicant reported depression, feeling purposeless, angry, and frustrated, struggling to work or otherwise function normally. The representative for the applicant provided a copy of a VA disability rating decision, date 3 November 2021, reflecting the applicant was rated, for treatment purposes only, for left shoulder strain, left wrist, carpal tunnel syndrome, lumbosacral strain, right knee strain, right wrist, carpal tunnel syndrome, unspecified depressive disorder. The AMHRR shows the applicant underwent two mental status evaluations (MSE) on 2 November 2018 and 3 September 2018, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. Representative for the applicant contends the applicant's unit only focused on the substance abuse and not the root cause of the sudden substance abuse. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. Representative for the applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits 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. 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 diagnosis: Unspecified Depressive Disorder. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found the applicant self-assertion alone, Unspecified Depressive Disorder while in the military. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined and determined that the medical condition does not mitigate the basis for separation. However, per ARBA guidance, the applicant's assertion depression impacting the basis for separation, partial mitigation is afforded. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's asserted depression outweighed the basis of separation - Drug Abuse. b. Response to Contention(s): (1) Representative for the applicant contends reported depression, feeling purposeless, angry, and frustrated, struggling to force self to work or otherwise function normally. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board considered this contention and determined that the totality of the applicant's service record warranted partial relief only, and there was no medical mitigation for the applicant's numerous failed drug tests. (2) Representative for the applicant contends the applicant's unit only focused on the substance abuse and not the root cause of the sudden substance abuse. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based off the applicant's length and quality of service, to include combat service. (3) Representative for the applicant contends an upgrade of the discharge would allow veterans benefits. 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 characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge - applicant asserted depression, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General Under Honorable Conditions because the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge. Thus, the prior characterization is no longer appropriate, and the applicant's requested relief was granted. (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 / Separation Order: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20200008492 1