1. Applicant’s Name: a. Application Date: 19 August 2020 b. Date Received: 25 August 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 and a narrative reason change. b. The applicant states they were diagnosed with severe depression and PTSD. They have not had any legal problems since leaving the military; no other offenses of any matter have been committed. They volunteer at a local gym helping the youth with physical training and utilizing the physical fitness skills they learned in the military. They have continued receiving medical help through Veteran Admin and a private doctor. They continue to be army strong. c. Board Type and Decision: In a records review conducted on 11 October 2023, and by a 5-0 vote, the board denied the request upon finding the separation was both proper and equitable. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200 / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 12 June 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF; intent to separate is in the AMHRR, however the document is void of the date (2) Basis for Separation: Wrongful use of marijuana (3) Recommended Characterization: General (under honorable conditions) (4) Legal Consultation Date: 06 May 2017 (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 23 May 2017 / General under honorable conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 February 2015 / 3 Years, 21 Weeks b. Age at Enlistment / Education / GT Score: 21 / High School / 90 c. Highest Grade Achieved / MOS / Total Service: PFC / 92G10 Culinary Specialist / 2 years, 4 months, 3 days d. Prior Service / Characterizations: none e. Overseas Service / Combat Service: none f. Awards and Decorations: NDSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: (1) A Developmental Counseling Form provides that on 11 November 2016 the applicant was counseled for wrongful use, possession of a controlled substance after marijuana was found in the backseat of their vehicle, and a pipe in their trunk after a random vehicle gate inspection on. * The applicant was counseled on 12 November 2016; they were flagged due to pending charges of wrongful possession of illegal substance * The applicant was counseled on 05 December 2016, they tested positive for marijuana [THC]; command referred enrolment in ASAP (Army Substance Abuse Program) (2) A memorandum, Garrison Department of Human Resources, Army Substance Program, Joint Base Lewis-McChord, Washington subject: Lab-Confirmed positive urinalysis dated 29 November 2016 provides that the applicant tested positive for THC from a sample taken on 12 November 2016 with no prior positive urinalysis results. (3) A Record of Proceedings Under Article 15 UCMJ document signed 31 January 2017 provides that the applicant received NJP for wrongful use of marijuana on 12 October 2016 and 12 November 2016. Punishment consisted of reduction in rank to private (PVT/E-1), forfeiture of $799 for 2 months, extra duty and limited post restriction for 45 days. (4) A Report of Medical Assessment dated 15 February 2017, provides that the applicant received a separation medical assessment/examination, were enrolled in ASAP and going to behavioral health for sleep troubles and mood disturbance. (5) A Report of Mental Status Evaluation document dated 13 March 2017, provides that the applicant received a mental health evaluation that psychologically cleared them for administrative action deemed appropriate by command. (6) On an unknown date the applicant’s immediate commander notified them of their intent to separate them for wrongful use of marijuana under the provisions of AR 635-200, Chapter 14-12c (Misconduct-Abuse of Illegal Drugs) with a recommended characterization of service of General (under honorable conditions). On 1 May 2017, the applicant acknowledged the commander’s notification and basis for separation, their available rights, to include the right to consult with counsel prior to submitting their election of rights. (7) On 6 May, after having consulted with counsel the applicant completed their election of rights, indicating they understood the prejudices that may occur in receiving a characterization of service of less than honorable and elected to submit a statement(s) on their behalf. On 17 May 2017 a paralegal specialist provided the applicant was provided adequate time to submit a statement(s) on their behalf and failed to do so. (8) At some point the chain of command endorsed the commander’s recommendation to separate the applicant prior to their expiration terms of service with a general (under honorable conditions.) On 23 May 2017 the appropriate authority approved the separation and directed the applicant be separated with a General (under honorable conditions) characterization of service.; Rehabilitative/counseling requirements were not applicable. (9) A DD Form 214 shows on 12 June 2017 the applicant was discharged accordingly, they completed total active service of 2 years, 4 months, and 3 days. a. Lost Time / Mode of Return: None b. Behavioral Health Condition(s): (1) Applicant provided: A VA disability rating decision document dated 7 August 2017, provides the applicant received a 70 percent disability rating for PTSD, suspiciousness, depressed mood, disturbances of motivation and mood, spatial disorientation, anxiety, impaired impulse control, and chronic sleep impairment. * A Mental Residual Functional Capacity Assessment completed by the applicant’s provider, provides the applicant is receiving treatment for their anxiety disorder and major depression; their Mentor (NCOIC) died from cancer * Medication labels provides the applicant was prescribed Trazodone, Clonazepam and Bupropion (2) AMHRR Listed: alcohol abuse, uncomplicated cannabis use, sleep troubles, and mood disturbance. 2. APPLICANT-PROVIDED EVIDENCE: A DD Form 293 (Discharge Review) application, copy of their DD Form 214, Department of Veterans Affairs benefits decision document that provides the applicant was rated 70 percent for several mental health conditions, Goldsboro Psychiatric Clinic; Mental Residual Functional Capacity Assessment that provides the applicant is receiving treatment for anxiety and major depression, and 3 medication prescription labels. 3. POST SERVICE ACCOMPLISHMENTS: They volunteer at a local gym helping the youth with physical training. Since leaving the military they have not had any legal troubles and have continued treatment for their mental health issues. 4. 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) Except as otherwise indicated in this regulation, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and, therefore, should be separated. In this regard, commanders will ensure that adequate counseling and rehabilitative measures are taken before initiating separation proceedings for the following reasons: * Involuntary separation due to parenthood * Personality disorder * Other designated physical or mental conditions * Entry-level performance and conduct * Unsatisfactory performance * Minor disciplinary infractions or a pattern of misconduct * Failure to meet body fat standards (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. 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. (6) 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: (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. 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. 5. 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 Form 214 provides that 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 misconduct. b. Based on the available evidence the applicant enlisted in the army at the age of 21, on 11 November 2016 during a random vehicle inspection, marijuana was found on the applicant’s backseat and a pipe in their trunk and received nonjudicial punishment for wrongful use of marijuana. They were enrolled in ASAP, attended group appointments and were compliant with the rehabilitation plan. They were also seen for behavioral health for sleep troubles, and mood disturbances. c. A review of the record provides the administrative process was properly followed according to regulation. The applicant was notified of the intent to separate them for misconduct (drug abuse, acknowledged they understood the basis for separation under the provisions AR 635-200, CH 14-12c. They elected to consult with counsel and did not submit a statement on their behalf; however, they failed to submit the statement within the required timeline. Rehabilitative and counseling are not mandatory for separations of this nature. They completed approximately 1 year, 8 months, and 2 days of their contractual obligation prior to their first date of wrongful use of marijuana. 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. 6. 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 was diagnosed in-service with Anxiety Disorder secondary to legal issues; however, this was later removed as he did not meet criteria for any clinical disorder based on reported symptoms or impairment. Post-service, he is service connected for Generalized Anxiety Disorder (GAD) with no PTSD diagnosis. (2) Did the condition exist, or experience occur during military service? Yes. The applicant was diagnosed in-service with Anxiety Disorder secondary to legal issues; however, this was later removed as he did not meet criteria for any clinical disorder based on reported symptoms or impairment. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The board's medical advisor applied liberal consideration and opined that the applicant’s anxiety in-service, secondary to the consequences of his choices, and post-service connection for GAD are not mitigating. The applicant reported symptoms were secondary to consequences not driving substance use. Additionally, upon evaluation with supportive documentation, the applicant did not meet criteria for any clinical disorder while serving. In regard to the post- service connection condition, Generalized Anxiety Disorder does not impair an individual's ability to make conscious choices. However, the board could consider individuals with anxiety can use to reduce symptoms irrespective of ability to make a conscious choice knowing right from wrong. (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 Generalized Anxiety Disorder outweighed the wrongful use of marijuana the basis of separation. b. Response to Contention(s): The applicant requests an upgrade to honorable. The board considered this contention and determined that an upgrade to the applicant characterization is not warranted based on the seriousness of the applicant misconduct - Drug Abuse (wrongful use of marijuana). Also, Generalized Anxiety Disorder does not impair an individual's ability to make conscious choices. Thus, the discharge was proper and equitable. 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 applicant’s Generalized Anxiety Disorder did not excuse or mitigate the offense of wrongful use of marijuana. 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. (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. 7. 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 AR20200010239 1