1. Applicant’s Name: a. Application Date: 7 May 2020 b. Date Received: 12 May 2020 c. Counsel: Yes 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. Counsel for the applicant seeks relief contending, in effect, the applicant should not have been separated from the Active US Army. The applicant should have been retained based on five important reasons: 1) the applicant was fully rehabilitated and should have been given the opportunity to return to a full-time career, 2) the applicant’s separation was procedurally defective, 3) the Command should have taken into account the applicant’s good service record and exemplary character, 4) the elimination was not equitable at the time, and 5) the underlying negative information is currently being appealed through the Army Board of Correction of Military Records. The proposed elimination, at the time, from the US Army should have been halted and the applicant should have his military record expunged. b. Board Type and Decision: In a records review conducted on 17 May 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 / General (Under Honorable Conditions) b. Date of Discharge: 10 April 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 January 2019 (2) Basis for Separation: The applicant was informed of the following reasons: For wrongful use of cocaine and being identified as a drug user between on or about 1 June 2018 and on or about 4 June 2018. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 22 January 2019 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 23 March 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 July 2017 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-3 / 12B10, Combat Engineer / 1 year, 9 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report – Initial - Final, dated 10 August 2018, reflects an investigation established the applicant committed the offense of Wrongful Use of Cocaine on 4 June 2018. FG Article 15, dated 27 August 2018, for wrongfully using cocaine (between on or about 1 June 2018 and on or about 4 June 2018). The punishment consisted of a reduction to E-1; and extra duty for 45 days; restriction to the limits of company area, dining/medical facility, place of worship, and place of duty for 45 days, suspended, to be automatically remitted if not vacated on or before 19 March 2019; oral reprimand. Memorandum, Synopsis of Treatment for Record Closure, dated 19 October 2018, reflects the applicant successfully completed SUDCC with a recommendation to Terminate Treatment and Retain on Active Duty. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): Report of Mental Status Evaluation, dated 6 November 2016, reflects the applicant was cleared 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 TBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. (1) Applicant provided: NA (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief; copies of military personnel records; DD Form 214; Enlisted Records Brief; medical documents. 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 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12c (2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14- 12a or 14-12b as appropriate. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKK” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for 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. Counsel for the applicant contends good service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. Counsel for the applicant contends 1) the applicant was fully rehabilitated and should have been given the opportunity to return to a full-time career, 2) the applicant’s separation was procedurally defective, 3) the Command should have taken into account the applicant’s good service record and exemplary character, 4) the elimination was not equitable at the time, and 5) the underlying negative information is currently being appealed through the Army Board of Correction of Military Records. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. Counsel contends, the applicant’s military should be expunged. The applicant’s request does not fall within the purview of this Board. The applicant may continue to appeal to the Army Board for Correction of Military Records using the DD Form 149 or the online application to request removal of the information. 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: The applicant has been diagnosed with Major Depressive Disorder (MDD) and Acute Stress Reaction, although not service connected. (2) Did the condition exist, or experience occur during military service? Yes. The board advisor found that the applicant physically injured his shoulder in May 2018 ultimately resulting in surgery immediately prior to his discharge, the condition continued to cause chronic pain. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the applicant’s Major Depressive Disorder (MDD) and Acute Stress Reaction did not mitigate the basis of separation – wrongful use of cocaine due to a lack of natural sequela between these conditions and cocaine use. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Major Depressive Disorder and Acute Stress Reaction outweighed the applicant’s medically unmitigated cocaine use. b. Response to Contention(s): (1) Counsel for the applicant contends good service. The Board considered the applicant’s 1 year and 9 months of service along with awards and decoration received by the applicant but determined that these factors did not outweigh the applicant’s misconduct - wrongful use of cocaine. (2) Counsel for the applicant contends the applicant was fully rehabilitated and should have been given the opportunity to return to a full-time career, the applicant’s separation was procedurally defective, the Command should have taken into account the applicant’s good service record and exemplary character, the elimination was not equitable at the time, and the underlying negative information is currently being appealed through the Army Board of Correction of Military Records. The Board considered this contention along with the totality of the applicant’s military records and found no evidence of the command acting in an arbitrary or capricious manner, but rather made their decision after independently reviewing the evidence regarding the applicant’s misconduct. (3) Counsel for the applicant contends the applicant’s military should be expunged. The applicant’s request does not fall within the purview of this Board. The applicant may continue to appeal to the Army Board for Correction of Military Records using the DD Form 149 or the online application to request removal of the information. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicants in service Major Depressive Disorder (MDD) and Acute Stress Reaction did not excuse or mitigate the offenses of illegal drug abuse. The Board also considered the applicant’s contention of good service and determined that the totality of the applicant’s record does not warrant discharge upgrade. 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. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (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 AR20200008676 1