1. Applicant's Name: a. Application Date: 9 November 2020 b. Date Received: 12 November 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 under honorable conditions (general). The applicant requests an upgrade to honorable. b. The applicant states, in effect they have changed over a period of time, they had anxiety and depression that they were battling with around the time of their incident that caused them to misbehave, they are still battling with those conditions and have surrounded themself around family and friends to help prevent anything bad from happening in their life and they have also sought helped with the Department of Veteran Affairs. (1) They know they were responsible for their actions of misconduct by using marijuana. They were going through a lot of hard times and sought out help from SUDCC (rehab); they graduated from the program and became drug free. Before their misconduct incident their chain of command was very judgmental at the time because they did not know their license was suspended, they received an article 15 after taking the appropriate measures to fix their suspension. Their commander forfeited their pay while knowing they had four children and a spouse to provide for, their family left due to them not having enough money to provide for them and they eventually lost their home which led them into a deep depression and the use of marijuana. (2) They know they were wrong for using the illegal substance however no one in their chain of command was willing to help them. They want their discharge upgraded so they can have the career to provide for their family and to excel in life. They have not had a relapse in years, and they plan on keeping it that way forever. They were not a bad person in the military, they had one issue that devasted them and they are a changed person that would love to move forward with their life for their family. c. Board Type and Decision: In a records review conducted on 6 December 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable, changed the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. There is no change to the reentry code RE-4. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, CH 14-12c / JKK / RE-4 / Under Honorable Conditions (General) b. Date of Discharge: 13 May 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 March 2020 (2) Basis for Separation: The applicant wrongfully used marijuana. (3) Recommended Characterization: General (under honorable conditions) (4) Legal Consultation Date: The applicant requested legal counsel on 9 April 2020 (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 21 April 2020 / General under honorable conditions. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 June 2016 / 4 years b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-4 (Specialist) / 92A10 Automated Logistical Specialist / 3 years, 10 months, 24 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: (1) An Enlistment/ Reenlistment Document provides the applicant enlisted in the United States Army Reserve at the rank of private (E-1) with an active-duty obligation of 4 years on 26 May 2016. (2) An Enlisted Record Brief (ERB) provides the applicant advanced to the rank of E-4 on 1 May 2018, they received a rank deduction to E-3 on 17 December 2018. They had an ETS date of 19 June 2020; they were discharged 1 month and 6 days prior to the completion of their contractual obligation. (3) A memorandum, Army Substance Abuse Program subject: Positive test and required actions, dated 12 August 2019 provides the applicant's command was notified regarding the applicant testing positive for THC, with the requirement that the applicant be referred to the Army Substance Abuse Clinic (ASAP) for evaluation within 5 days. (4) A Developmental Counseling Form dated 16 August 2019 provides the applicant was counseled to inform them they tested positive for THC from a urinalysis that was conducted on 22 July 2019. (5) Record of Proceedings UCMJ dated 24 September 2020 provides the applicant received a NJP for violating Article 112a of the UCMJ. They wrongfully used marijuana between 23 June - 23 July 2019. Punishment consisted of reduction in rank to E-1, forfeiture of $840 pay, extra duty for 45 days and an oral reprimand. (6) A Report of Mental Status Evaluation document dated 10 October 2019, provides the applicant received a separation mental health evaluation, they were diagnosed with adjustment disorder and unspecified substance abuse. (7) A Report of Medical Examination dated 18 December 2019, provides the applicant received a separation medical assessment/examination. (8) A memorandum, 2D Armored Brigade Combat Team (Rear) (Provisional), 3D Infantry Division, Fort Stewart, Georgia subject: Separation under the provisions of AR 635-200, Chapter 14-12c (misconduct-abuse of illegal drugs) dated 26 March 2020 provides the applicant's immediate commander notified them of their intent to separate them for wrongfully using marijuana. The commander recommended a General (under honorable conditions) characterization of service. The applicant acknowledged the commander's notification and basis for separation, and their available rights. The applicant completed their election of rights and requested to consult with counsel on 9 April 2020. * The applicant's election of rights is void of the advising counsel's signature, printed name, rank/branch, and their duty position. (9) On 20 April 2020 the chain of command endorsed and concurred with the commander's recommendation. On 21 April 2020 the appropriate authority approved the separation and directed a characterization of service of General (under honorable conditions). (10) A DD Form 214 shows on 13 May 2020 the applicant was discharged, they completed a total active service of 3 years and 10 months and 24 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): Anxiety, Depression, Alcohol use disorder. (1) Applicant provided: A Department of Veterans Affairs benefits document that provides the applicant received a 70 percent rating for adjustment disorder with anxiety and depressed mood to include alcohol use disorder. (2) AMHRR Listed: Adjustment disorder, unspecified substance abuse, suicide attempt. 5. APPLICANT-PROVIDED EVIDENCE: 2-DD Form 293 (Discharge Review) applications, a self- authored letter, a Department of Veteran Affairs document that provides verification of the applicant's honorable service, a Department of Veterans Affairs benefits document that provides the applicant is 90 percent service connected and a certificate of completion from the Substance Use Disorder Clinical Care on Fort Stewart Georgia that provides the applicant completed outpatient treatment on 27 January 2020. 6. POST SERVICE ACCOMPLISHMENTS: They have not had a relapse in years, they are a changed person. 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 provides the authorized types of characterization of service or description of separation. (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 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. 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. A soldier subject to this discharge under this regulation will be considered and processed for discharge even though he/she has filed an appeal or has stated his/her intention to do so. Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. (5) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. 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. It provides 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 missions. Individuals who do not self-refer for treatment and are subsequently identified as positive for controlled substances for which they do not have a valid prescription may be considered in violation of the UCMJ for drug misuse/abuse. 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, paragraph 12c, 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-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. * 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. * 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. h. Appendix 12, Maximum Punishment Chart in the Manual for Courts-Martial provides that wrongful use of marijuana includes a punitive discharge, confinement from 2-5 years, and total forfeiture or pay. i. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 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. The applicant's DD-214 provides the applicant received a General (under honorable conditions) characterization of service, rather than an under other than honorable conditions (UOTCH) discharge which is normally considered appropriate for a soldier discharged for drug abuse. b. Based on the available evidence the applicant enlisted in the army at the age of 18, during their enlistment they received the Army Good Conduct Medal and advanced to the rank of E-4. At some point the applicant received their first non-judicial punishment (NJP) and received a rank deduction to E-3. On 24 September 2019 they received their second NJP and was demoted to E-1, they were subsequently processed for administrative separation. The applicant was discharged with 1 month and 6 days remaining on their 4-year contractual obligation. c. The applicant was notified of the intent to separate them for misconduct (abuse of illegal drugs), they acknowledged they understood the basis for separation under the provisions AR 635-200, CH 14-12c. They elected to consult with counsel, however the AMHRR is void of documentation to support if they applicant consulted with counsel as the documentation is void of counsel endorsement. They received the required medical and mental health separation examinations, and a DD Form 214 shows they were discharged with an under honorable conditions (general) characterization of service on 13 May 2020. d. Chapter 14 establishes policy and prescribes procedures for members being separated for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. e. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede 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? 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: In and post-service connected Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. In-service connected Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that based on liberal consideration and ARBA current guidance, an Adjustment Disorder is mitigating due to service connection. However, this advisor is not recommending an upgrade as symptoms related to difficulty coping with stress, i.e., Adjustment Disorder, do not result in cognitive impairment rendering him unable to make conscious decisions knowing right from wrong with consequences. Additionally, the diagnosis is given when the symptoms are low level and do not rise to the level of mental defect possibly impairing decision making. (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): (1) The applicant contends they received an Article 15 for a license they did not know was suspended, they contend they rectified the situation and received a NJP despite of which resulted in forfeiture of pay. The no pay status caused them to not have the means to provide for the family; their family left, and they lost their home. They were not receiving any help from their chain of command which caused depression and devastated them. The ERB provides the applicant received a rank deduction on 17 December 2018. The Board considered this contention during board proceedings along with the totality of the applicant's service record. c. The Board determined the discharge is inequitable based on the applicant's length of service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable, changed the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. There is no change to the reentry code RE-4. d. Rationale for Decision: (1) The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board found sufficient evidence of an in-service mitigating factor (Length) that does mitigate the applicant's wrongful use of marijuana. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200009898 1