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: 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 honorable. The applicant seeks relief contending, in effect, while serving on active duty, the applicant suffered a lower back injury in the early part of 2002. Following the back injury, the applicant was limited to light duty. The applicant was under stress due to personal reasons and not being able to perform normal duties. At the time of being discharged, the applicant was in the process of going through a medical board. The separation code on the DD Form 214 is JKK, which is drug use. The applicant started smoking marijuana because of the stress and did not want to become addicted to the pain medication which was prescribed for the back injury. The applicant was 20 years old and recovering from a gunshot wound while trying to take care of a parent and sibling at the time of the drug test. The applicant was prescribed Percocet, Mobic, and Flexeril for the back injury. All these medications should have been taken daily or some as needed. Instead, the applicant chose to smoke marijuana instead of taking the medications on a regular basis, which is noted on the report of medical examination completed in April 2012. The applicant also has a health record from February 2012 which states there was a concern with the pain medications, which is further proof why the applicant did not take the medication. The applicant believes the release from active duty was based on one isolated incident in the 33 months of service. The applicant was on the fast track until the gunshot incident. The applicant has many medals and ribbons to show. The applicant is requesting an upgrade to receive VA health care benefits. b. Board Type and Decision: In a records review conducted on 27 April 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, quality of service and the applicant's depression partially mitigating applicant's basis of separation, marijuana use. The remaining misconduct of tampering with a urine sample is unmitigated. 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: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 26 June 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 May 2012 (2) Basis for Separation: The applicant was informed of the following reasons: On 24 August 2011, the applicant tested positive for marijuana, a controlled substance. In addition, during a urinalysis, the applicant tampered with the urine sample. (3) Recommended Characterization: Under Other Than Honorable Conditions / The intermediate commander recommended a general (under honorable conditions). (4) Legal Consultation Date: On 29 May 2012, the applicant waived legal counsel. (5) Administrative Separation Board: On 28 February 2012, the applicant unconditionally waived consideration of the case before an administrative separation board as part of an Offer to Plead Guilty in a Summary Court-Martial proceedings. (6) Separation Decision Date / Characterization: 12 June 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 September 2009 / 4 years, 21 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Food Service Operation / 2 years, 9 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 8 September 2011, reflects the applicant tested positive for (oxycodone) 295; (oxymorphone) 777; THC 46 (marijuana), during a Probable Cause (PO) urinalysis testing, conducted on 24 August 2011. CID Report of investigation Final, dated 20 October 2011, reflects the investigation established probable cause to believe the applicant adulterated the urine sample during a urinalysis, and consumed marijuana as determined by a urinalysis. During the interview, the applicant confessed to the offenses. Report of Result of Trial reflects the applicant was tried in a Summary Court-Martial on 22 March 2012. The applicant was charged with three specifications. The summary of offenses, pleas, and findings: Charge I: Violation of Article 112a, UCMJ, between 25 July 2011 and 24 August 2011, wrongfully used marijuana a schedule I controlled substance Plea: guilty Finding: Guilty. Charge II: Violation of Article 134, UCMJ: Specification 1: On or about 22 August 2011, the applicant oneself in the leg plea: Not Guilty Finding: Not Guilty. Specification 2: On or about 24 August 2011, tamper with urine sample by adding water and an unknown liquid substance to the specimen, such conduct being prejudicial to good order and discipline in the armed forces. Plea: Not Guilty Finding: Guilty. Sentence: Reduced to E-2; Forfeiture $835 and hard labor without confinement for 30 days. Sentence was adjudged on 22 March 2012, and 4 April 2012. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Report of Medical Examination, dated 4 April 2012, the examining medical physician noted in the comments section: Depression controlled and marijuana use. Report of Medical History, dated 4 April 2012, the examining medical physician noted in the comments section: Insomnia, and depression is currently stable. Chronological Record of Medical Care undated, reflects the applicant had trouble sleeping and depression. The applicant received counseling and was prescribed Zoloft but smoked marijuana to cope. (2) AMHRR Listed: The Report of Medical Examination, History and Chronological Record of Medical Care as described in previous paragraph 4j(1). Report of Mental Status Evaluation, dated 9 April 2012, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mTBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was diagnosed with: Adjustment Disorder with Anxiety and Depressed Mood. The applicant meets retention standards per AR 40-501. The applicant is cleared for administrative separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and medical records. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states 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. (5) Paragraph 3-8a states a Soldier is entitled to an honorable characterization of service if limited-use evidence (see AR 600-85) is initially introduced by the Government in the discharge proceedings, and the discharge is based upon those proceedings. The separation authority will consult with the servicing Judge Advocate in cases involving limited use evidence. (6) 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. (7) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (8) Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14- 12a or 14-12b as appropriate. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends going through the medical board process at the time of the discharge. The applicant contends the discharge should have been for medical reasons. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non- disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. 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 contends being under stress due to personal reasons and not being able to perform normal duties. The applicant started smoking marijuana because of the stress and did not want to become addicted to the pain medication which was prescribed for the back injury. The applicant's AMHRR contains documentation which supports a diagnosis of in-service depression. The applicant's Report of Medical Examination, dated 4 April 2012, reflects the examining medical physician noted in the comments section: Depression controlled and marijuana use. The Report of Medical History, dated 4 April 2012, the examining medical physician noted in the comments section: Insomnia, and depression is currently stable. The Chronological Record of Medical Care undated, reflects the applicant had trouble sleeping and depression. The applicant received counseling and was prescribed Zoloft but smoked marijuana to cope. The record shows the applicant underwent a mental status evaluation on 9 April 2012, which indicates the applicant was diagnosed with: Adjustment Disorder with Anxiety and Depressed Mood. The MSE, Report of Medical Examination; History and Chronological Record of Medical Care were considered by the separation authority. The applicant contends the release from active duty was based on one isolated incident in the 33 months of service. Army Regulation 635-200, paragraph 3-5, 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 youth and immaturity affected the applicant's behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends good service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does 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. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder, Depression. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant's primary in-service diagnosis was an Adjustment Disorder, but there is also some evidence that applicant may have been experiencing depression during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant's primary in-service diagnosis was an Adjustment Disorder, but there is also some evidence that applicant may have been experiencing depression during military service. Depression is a mitigating BH condition and given the nexus with self-medicating with substances, applicant's depression more likely than not contributed to his positive UA for marijuana. However, tampering with a urine sample is not mitigated by an Adjustment Disorder or Depression since neither condition interferes with the ability to distinguish between right and wrong and act in accordance with the right. (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 adjustment disorder and depression outweighed the basis for applicant's separation - tampering with a urine sample - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the discharge should have been for medical reasons. The Board considered determined that the applicant's requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. (2) The applicant contends being under stress due to not being able to do the normal duties and personal reasons. The applicant started smoking marijuana because of the stress and did not want to become addicted to the pain medication which was prescribed for the back injury. The Board considered this contention and determined applicant's marijuana use is mitigated by applicants depression, thus the Board voted to change the characterization of service to General, Under Honorable Conditions. (3) The applicant contends the release from duty was based on one isolated incident in the 33 months of service. The Board considered this contention and determined the applicant was discharged for marijuana use and tampering with a urine sample. These are two separate incidents and there is insufficient evidence to support the applicant's discharge was based on one isolated incident. (4) The applicant contends an upgrade of the discharge would allow veterans 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. (5) The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The Board considered this contention and determined that the applicant's youth and immaturity did not outweigh the seriousness of the applicant's tampering with a urine sample. The Board also determined that there is insufficient evidence in the applicant's official record or provided by the applicant that the applicant was not provided sufficient access to BH resources. Therefore, an upgrade to Honorable is not warranted. (6) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention and determined that the applicant's family issues does not mitigate the applicant's tampering with a urine sample misconduct as the Army affords many avenues to Soldier's including seeking separation for hardship. (7) The applicant contends good service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. c. The Board determined that the characterization of service was inequitable based on the applicant's length of service, quality of service and the applicant's depression partially mitigating applicant's basis of separation, marijuana use. The remaining misconduct of tampering with a urine sample is unmitigated. 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. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's depression mitigated the applicant's misconduct of marijuana use, however the remaining misconduct of tampering with a urine sample is not mitigated. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: 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 AR20210002008 1