1. Applicant's Name: a. Application Date: 12 August 2020 b. Date Received: 8 September 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 conditions. The applicant requests an upgrade to honorable in order to access their Veterans Affairs (VA) benefits; however, no further explanation is provided. b. Board Type and Decision: In a records review conducted on 29 September 2023, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service. 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. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 29 December 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF / The AMHRR contains a Separation Action Control Sheet, signed, and dated by the Legal NCOIC on 15 November 2008, provides the applicant was notified on 21 October 2008; however, the memo itself is missing from the record. (2) Basis for Separation: Pursuant to the applicant's request for voluntary discharge under provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 2 October 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 October 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 October 2003 / 5 years, 2 months b. Age at Enlistment / Education / GT Score: 25 / High School Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F10 H7 Petroleum Supply SP / 5 years, 2 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / 1 June 2004 - 10 June 2005 f. Awards and Decorations: AAM, GWOTSM, KDSM, ASR, OSR / The ERB reflects the applicant was awarded the ICM-CS, however, the award is not reflected on the latest DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 14 July 2003, the applicant enlisted in the Delayed Entry Program; on 30 October 2003, they enlisted in the Regular Army for a period of 5 years. (2) Enlisted Record Brief (ERB) provides the applicant completed an overseas tour in Korea from 1 June 2004 to 10 June 2008, received an Army Achievement Medal, promoted to specialist on 1 December 2007 and awarded an Iraqi Campaign Medal, though it is missing from the AMHRR and the DD Form 214. (3) Electronic Copy of DD2624, dated 20 February 2008, reflects the applicant tested positive for THC 295 during an Inspection Unit (IU) urinalysis conducted on 6 February 2008. (4) On 26 February 2008 a Suspension of Personnel Favorable Actions (FLAG) shows the applicant was flagged for adverse action (AA). (5) Electronic Copy of DD2624, dated 26 March 2008, reflects the applicant tested positive for THC 218 during an Inspection Unit (IU) urinalysis conducted on 11 March 2008. (6) Electronic Copy of DD2624, dated 7 May 2008, reflects the applicant tested positive for THC 69 during an Inspection Unit (IU) urinalysis conducted on 24 April 2008. (7) Electronic Copy of DD2624, dated 8 May 2008, reflects the applicant tested positive for THC 280 during an Inspection Random (IR) urinalysis conducted on 28 April 2008. (8) Electronic Copy of DD2624, dated 28 May 2008, reflects the applicant tested positive for THC 425 during an Inspection Unit (IU) urinalysis conducted on 14 May 2008. (9) Electronic Copy of DD2624, dated 11 June 2008, reflects the applicant tested positive for THC >LOL during an Inspection Random (IR) urinalysis conducted on 29 May 2008. (10) Electronic Copy of DD2624, dated 19 June 2008, reflects the applicant tested positive for THC >LOL during an Inspection Random (IR) urinalysis conducted on 11 June 2008. (11) Electronic Copy of DD2624, dated 8 July 2008, reflects the applicant tested positive for THC >LOL during an Inspection Random (IR) urinalysis conducted on 27 June 2008. (12) A Memorandum, Attn: IMSW-BLS-HRA. Subject: Notification of Confirmation of Positive Urinalysis Results dated 16 July 2008 provides the Alcohol and Drug Control Officer notified the command for positive drug results for marijuana (THC); paragraph 3 states the applicant is to be referred to ASAP within 3 duty days; however, documentation is missing on whether that was executed or not. Additionally, the AHMRR provided eleven electronic copies of the DD Form 2624 (Specimen Custody Document - Drug Testing) showing a positive THC result for the applicant's social security number. (13) Electronic Copy of DD2624, dated 8 August 2008, reflects the applicant tested positive for THC 908 during an Inspection Random (IR) urinalysis conducted on 22 July 2008. (14) Electronic Copy of DD2624, dated 28 August 2008, reflects the applicant tested positive for THC >LOL during an Inspection Random (IR) urinalysis conducted on 19 August 2008. (15) Electronic Copy of DD2624, dated 9 September 2008, reflects the applicant tested positive for THC >LOL during an Inspection Random (IR) urinalysis conducted on 28 August 2008. (16) The AMHRR does not provide the required DD Form 458 (Charge Sheet) nor the chain of command's endorsement and disposition of recommended charge(s). (17) On 2 October 2008, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10; they consulted with legal counsel and was advised of the basis for the trial by court- martial, their available rights, the adverse nature of this discharge, and the basis for voluntarily requesting to be under the provision of Army Regulation 635-200, chapter 10 for wrongful use, possession, etc., of a controlled substance. The request indicates the applicant no longer desired rehabilitation or to remain active duty and submitted a statement on their behalf, however, the official records do not provide the statement. (18) On 30 October 2008, the Senior Defense Counsel explained two discrepancies in the applicants request for discharge packet, specifically page 3 of the voluntary request shows a name other than the applicant; however, this is an administrative error, the individual counseled was the applicant. Additionally, paragraph 6 of the request indicates the applicant was to submit a request on their behalf; the statement was to be an explanation from their treating physician regarding operation recovery but after numerous contact attempts to talk or obtain a statement the physician did not respond. However, contact was made with an intern who provided a general indication the applicant may need a lengthy recovery time based on the type of back surgery involved. Due to not being able to contact the treating physician, counsel spoke to the applicant indicated to submit the request without the treating physician information. At the time counsel spoke with the applicant, they were still in the hospital recovering from surgery. (19) The AMHRR is void of chain of command endorsements referencing concurrence disposition and the recommended action, however, it does provide a Separation Action Control Sheet, dated 15 November 2008, that show the separation packet was routed through the chain of command to the separation approval authority. (20) An Oath of Extension of Enlistment, dated 26 November 2008 extended the applicant's enlistment by 2 months pending personnel action, updating their expiration term of service (ETS) to 29 December 2008. (21) A Memorandum for Directorate of Human Resources-Adjutant General, Fort Bliss, TX. Subject: Request for Discharge in Lieu of Trial by Court-Martial, provides on 31 October 2008 the separation authority approved the applicant's voluntary separation request with a characterization of service of under other than honorable conditions and reduction to the lowest enlisted grade. (22) On 29 December 2008, the applicant was discharged accordingly. A DD Form 214 (Certificate of Release of Discharge from Active Duty) reflects the applicant completed 5 years and 2 months of net active service this period. The applicant has completed their first full term of service. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge). 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), dated 25 September 2019, 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) 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. (2) 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. (3) An 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) Chapter 10, Discharge in Lieu of Trial by Court Martial is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general was authorized, an under other than honorable conditions discharge was considered appropriate, unless the record was so meritorious it would warrant an honorable. (a) After receiving legal counseling, the soldier may elect to submit a request for discharge in lieu of trial by court-martial. The soldier will sign a written request, certifying that they have been counseled, understands their rights, and may receive a discharge under other than honorable conditions. (b) The following will accompany the request for discharge: * A copy of the court-martial Charge Sheet (DD Form 458) * Report of medical examination and mental status evaluation, if conducted * A complete copy of all reports of investigation * Any statement, documents, or other matter considered by the commanding officer in making their recommendation, including any information presented for consideration by the soldier or consulting counsel * A statement of any reasonable ground for belief that the soldier is, or was at the time of misconduct, mentally defective, deranged, or abnormal. When appropriate, evaluation by a psychiatrist will be included. 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) 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. g. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) governs the program and identifies Army policy on alcohol and other drug abuse, and responsibilities. The ASAP is a command program that emphasizes readiness and personal responsibility. The ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier's chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army values and the standards of performance, discipline, and readiness necessary to accomplish the Army's mission. (1) Unit commanders must intervene early and refer all Soldiers suspected or identified as alcohol and/or drug abusers to the ASAP. The unit commander should recommend enrollment based on the Soldier's potential for continued military service in terms of professional skills, behavior, and potential for advancement. (2) ASAP participation is mandatory for all Soldiers who are command referred. Failure to attend a mandatory counseling session may constitute a violation of Article 86 of the Uniform Code of Military Justice (UCMJ). (3) Alcohol and/or other drug abusers, and in some cases dependent alcohol users, may be enrolled in the ASAP when such enrollment is clinically recommended. e. Soldiers who fail to participate adequately in, or to respond successfully to, rehabilitation will be processed for administrative separation and not be provided another opportunity for rehabilitation except under the most extraordinary circumstances, as determined by the Clinical Director in consultation with the unit commander. h. Manual for Courts-Martial (2008 Edition), United States, states military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good orders and discipline in the Armed Forces. Article 112a (wrongful use, possession, etc., of a controlled substance) states in subparagraph the wrongful use, possession, manufacture, or introduction of controlled substance, to include marijuana, the maximum punishment consists of a dishonorable discharge, forfeiture of all pay and allowances, and confinement 5 years. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests an upgrade to honorable. A review of official military records provides administrative regularity in the proper retention of records, specifically the record is void of: * A Charge Sheet for the wrongful use of marijuana (2008) * ASAP initial screening requirements as directed by the Army Substance Abuse Program for the wrongful use of controlled substance * medical and or mental status evaluation, if conducted * chain of command endorsements * any investigation reports b. The available evidence provides the applicant served in Korea for 12 months and while the deployment portion of the ERB does not show service in Iraq, it does show the applicant was awarded the ICM. Additionally, they were promoted to the rank of specialist and awarded the Army Achievement Medal. The applicant tested positive for marijuana (THC) on eleven occasions between February - August 2008. Although the record is void of a complete separation packet, the record shows a voluntary request to be discharged In Lieu of Trial by Court-Martial for wrongful use, possession, etc., of a controlled substance. Senior Defense Counsel submitted a separate memorandum identifying two discrepancies in the separation packet, stating an administrative error in identifying the improper Soldier's name other than the applicant. Moreover, counsel clarified the applicant's election to submit a statement on the applicant's behalf, was pertinent to the submission of a statement from the treating physician regarding the applicant's back surgery and recovery time. Despite attempts from counsel the treating physician was unavailable. Additionally, at the time of the separation process, the applicant was in the hospital recovering from the aforementioned back surgery. Due to the lack of evidence in the AMHRR, the specific facts and circumstances surrounding the surgery and/or wrongful use/possession of a controlled substance are unknown. (1) The AMHRR is void of a medical and/or mental health examination; although, not required for a voluntary discharge request, this can be requested by the applicant. (2) On 31 October 2008 the separation authority approved the applicant's voluntary request for discharge in lieu of trial by court-martial under the provisions of AR 635-200, Chapter 10, and dismissed the charge(s) and their specification(s). The applicant completed their 5-year contractual obligation and 2 additional months of extended service obligation approved to complete the personnel/medical processing. c. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court-martial. A discharge under other than honorable conditions normally is appropriate for a soldier who is discharged in lieu of trail by court-martial. However, the separation authority may direct a general discharge if such is merited by the soldier's overall record during the current enlistment. For soldiers who have completed entry-level status, characterization of service is honorable is not authorized unless the soldier's record is otherwise so meritorious that any other characterization clearly would be improper. d. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impeded on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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 the applicant had no mitigating behavioral health diagnoses. The applicant provided no documents or testimony of an in-service 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): The applicant requests relief so that they may receive VA 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 inequitable based on the applicant's length and quality of service, to include combat service. 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. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 grant relief by upgrading the applicant's characterization of service to General, Under Honorable Conditions. Although the Board found the discharge proper and equitable and there were no behavioral health diagnoses which mitigated the misconduct to warrant relief, it was found that the discharge has served its purpose. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, 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: 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 AR20200009840 1