1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was inequitable because it was based on an isolated incident in almost three years of service due to "untrue" statements given by a disgruntled Soldier. The applicant reported the Soldier to the First Sergeant for stabbing two other Soldiers. The Soldier then used the applicant's cell phone to sell drugs, prior to the applicant's knowledge of the Soldier hurting fellow Soldiers and the illegal activities. Upon the Soldier's arrest and once the applicant heard, the applicant reported it. The Soldier told authorities the applicant was part of the drug sale. The applicant states never being involved in the sale of drugs. The applicant was given a choice between a court-martial and rehabilitation. The applicant chose rehabilitation because it was an opportunity to prove to not have a drug issue nor participate in selling of drugs. As per the attached letter from the commander, the applicant never failed a urinalysis or participated in illegal activities. The applicant only failed rehabilitation due to refusing to write an autobiography about childhood and life in general. The applicant requests to change the reentry code and narrative reason to hardship or a medical discharge and upgrade the character of service to enable reenlistment and continued service in the military. The applicant provided a letter from Veterans Upward Bound reflecting the applicant's efforts to become a better parent to the applicant's children. In a records review conducted on 29 March 2022, and by a 5-0 vote, the Board determined the discharge was inequitable due to the one-time use and more than 16 years since discharge which the applicant has overcome. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to 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, and the reentry code to RE-3. 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: Drug Rehabilitation Failure / AR 635-200, Chapter 9 / JPC / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 2 December 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 November 2005 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to complete the Army Substance Abuse Program after being referred. On 21 September 2005, the applicant stated having problems and wanted to quit using and did not want to go through withdrawals while in Iraq. On 26 September 2005, after being evaluated, the applicant gave the impression of Alcohol Dependence, Cocaine Dependence, and Cannabis Dependence, which was confirmed by Dr. M. on 29 September 2005. On 26 September 2005, the applicant was enrolled while pending admission to Eisenhower Substance Abuse Program (ESAP) at Fort Gordon, GA. On 13 October 2005, the applicant was admitted into ESAP and prior to completing, decided to withdraw from treatment against medical advice. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 21 November 2005, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 21 November 2005 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 August 2003 / 6 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10 2B, Infantryman / 2 years, 3 months, 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR, GWOTSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum, subject: Action Against Medical Advice, dated 20 October 2005, reflects he was advised by ASAP clinical staff the enrollment in ASAP was medically advised, voluntarily rejected the recommendation and chose not to participate. The applicant understood, by refusing recommended and indicated medical care, may be subjected to disciplinary actions, to include separation from the Army. CG Article 15, dated 11 August 2005, for, on two occasions, willfully disobeying a lawful order from Staff Sergeant M.F., not to drive privately owned vehicle (POV) until properly insured (17 June and 19 July 2005). The punishment consisted of a reduction to E-3; forfeiture of $361 pay per month for one month (suspended); and, extra duty and restriction for 14 days. Report of Medical History, dated 1 November 2005, the examining medical physician noted in the comments section: Cocaine User. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Memorandum, subject: Synopsis of Treatment for [Applicant], dated 18 October 2005, reflects the applicant was referred to ASAP on 21 September 2005, after having informed command of having a problem with alcohol/drugs. During the assessment, the applicant stated, "I have a problem and want to quit using. I don't want to go through withdrawal in Iraq." The applicant was evaluated on 26 September 2005 and gave the impression of Alcohol Dependence, Cocaine Dependence, and Cannabis Dependence with was confirmed by Dr. M. on 29 September 2005. On 26 September 2005, a Rehabilitation Team met and enrolled the applicant in the outpatient treatment program which pending an admission to Eisenhower Substance Abuse Program (ESAP), at Fort Gordon. The applicant was admitted to ESAP on 13 October 2005, but prior to completion decided to withdraw from treatment against medical advice. The command indicated they planned to separate the applicant as a rehabilitation failure. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two copies of DD Form 214 (Member-4 and Service-2 copies); VA Statement of Support of Claim; VA Montana Health Care System medical documents; ARBA Case Management Division letter; Northern Montana State University, Center for Vets letter; third-party letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends pursuing college education in an effort to become a better parent to the applicant's children. 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 600-85 defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10-13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy is limited to: Results of command-directed drug or alcohol testing that are inadmissible under the MRE; Results of a drug or alcohol test collected solely as part of a safety mishap investigation undertaken for accident analysis and the development of countermeasures; Information concerning drug or alcohol abuse or possession of drugs incidental to personal use, including the results of a drug or alcohol test, collected as a result of a Soldier's emergency medical care solely for an actual or possible alcohol or other drug overdose; A Soldier's self-referral to BH for SUD treatment; Admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to treatment and provided by Soldiers as part of their initial entry into SUD treatment; Drug or alcohol test results, if the Soldier voluntarily submits to a DoD or Army SUD treatment before the Soldier has received an order to submit for a lawful drug or alcohol test; and, the results of a drug or alcohol test administered solely as a required part of a DoD or Army SUD treatment program. e. 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 9 outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to the Army Substance Abuse Program (ASAP) for alcohol or drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. (5) Paragraph 9-4, stipulates the service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. An honorable discharge is mandated in any case in which the Government initially introduces into the final discharge process limited use evidence as defined by AR 600-85. 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 "JPC" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 9, for drug rehabilitation failure. 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. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record indicates on 18 October 2005, the unit commander in consultation with the Clinical Director/Army Substance Abuse Program (ASAP), declared the applicant a rehabilitation failure. In the commander's judgment, it was not feasible and appropriate to expend any further time or effort towards rehabilitation of the applicant to an acceptable level of performance and conduct and disposition by any other means would not be in the best interest of the Army. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 9, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "drug rehabilitation failure," and the separation code is "JPC." Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635- 5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends he was unjustly discharged due to false statements made by another Soldier, accusing the applicant of selling drugs and being a rehabilitation failure because of refusing to write an autobiography about childhood and life in general. The applicant's AMHRR reflects the applicant was enrolled in ASAP because the applicant informed command of having a problem with alcohol/drugs and wanted to quit, but did not want to go through withdrawals while in Iraq. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service. The third party statement provided with the application speaks highly of the applicant. The Board will consider the service accomplishments and the quality of service. The applicant contends the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends pursuing a college education in an effort to become a better parent to the applicant's children. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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. Applicant has BH diagnoses of PTSD, Alcohol Abuse, Anxiety Disorder, Major Depression, and Adjustment Disorder, all of which could mitigate applicant's discharge. (2) Did the condition exist or experience occur during military service? No. The Board's Medical Advisor found none of the BH conditions were diagnosed in-service nor service-connected by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined that since none of the conditions were diagnosed in-service nor service-connected by the VA, they cannot be used to excuse or mitigate the drug rehab failure, even after applying liberal consideration. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends being unjustly discharged due to false statements made by another Soldier, accusing the applicant of selling drugs and being a rehabilitation failure by refusing to write an autobiography about childhood and life in general. The record shows the applicant was discharged for rehab failure for withdrawing from treatment against medical advice. The Board determined that the evidence of record contradicts this contention, and this contention did not persuade the Board that any change was warranted to applciant's discharge. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board determined that the isolated incident of being an ASAP failure constitutes a valid basis for discharge which the applicant was appropriately given, however given the passage of time and post service accomplishments, the Board voted that relief was warranted. (3) The applicant contends good service. The Board took the applicant's service into consideration during proceedings but voted to provide relief based on post-service length of time and post-service accomplishments. (4) The applicant contends the discharge should have been for medical reasons. The Board found the MSE cleared the applicant for administrative discharge, and was not qualified or required to proceed with a medical discharge. (5) The applicant desires to rejoin the military. The Board voted to change the RE-code to a RE-3, which is a waivable code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (6) The applicant contends pursuing college education in an effort to become a better parent to the applicant's children. The Board determined that due to the 16 years of time between discharge and time of application to this Board, relief was warranted. c. Board determined the discharge is inequitable based on the one-time use and more than 16 years since discharge, and post-service accomplishments. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on one-time use and more than 16 years since discharge. Thus the prior characterization is no longer appropriate. (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 Board voted to change the RE code to RE-3. 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: RE-3 a. 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 AR20210000153 2