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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant was found guilty of tampering with a UA. The applicant claims to be innocent. The applicant was a newly promoted Sergeant, and the UA was from August 2015. The test came back as “too diluted,” with no THC. The applicant had been over-hydrated for PT, and there was a random UA. After the sample came back, there was an investigation. The applicant was found guilty, while the “watcher,” also being investigated for a potential Article 15, was not. This is proof they did not have evidence, nor did they fully believe in what they were doing. The applicant had scientific proof for the battalion commander during the Field Grade Article 15 hearing. The applicant knew the applicant had done nothing wrong and had proof to back it, also the support from the 1SG, PSG, SL, and PL. They knew the applicant was not one to throw hard work away. The battalion commander and the commander saw it differently and said it was impossible, and there were no THC traces. The applicant was demoted and given half pay and 45 days extra duty. The applicant was angry, resentful and wanted to get out. During Christmas leave, the applicant planned on showing what a real failed UA looked like and came back from leave and failed the UA, fully knowing what was next. The applicant wanted out; they ruined the applicant’s leadership mindset and belief in the Soldiers. What the applicant did was not correct, but the applicant believed it should not have a massive effect on the applicant’s future. The applicant is employed, has stayed out of trouble, and is still looking forward to the future. b. Board Type and Decision: In a records review conducted on 2 February 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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 / General (Under Honorable Conditions) b. Date of Discharge: 2 May 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 March 2016 (2) Basis for Separation: The applicant was informed of the following reasons: Between on or about 5 December 2015 and on or about 5 January 2016, the applicant wrongfully used marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 24 March 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 6 April 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 November 2011 / 6 years, 21 weeks b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B2P, Infantryman / 4 years, 5 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (18 June 2012 – 9 September 2012; 22 January 2014 – 13 October 2014) f. Awards and Decorations: ACM-2CS, AAM, AGCM, NDSM, GWOTSM, ASR, NATOMDL-2, CIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 30 November 2015, for disobeying a lawful command from CPT K. E. F. on or about 27 July 2015; and, with the intent to deceive, made a false official statement to 1LT M. S. on or about 24 September 2015. The punishment consisted of a reduction to E-4; forfeiture of $1,119 pay per month for two months (suspended); and extra duty and restriction for 45 days. Electronic Copy of DD Form 2624, dated 13 January 2016, reflects the applicant tested positive for THC 256, during an Inspection Unit (IU) urinalysis testing, conducted on 5 January 2016. FG Article 15, dated 4 February 2016, for wrongfully using marijuana (between on or about 5 December 2015 and 5 January 2016). The punishment consisted of a reduction to E-1; forfeiture of $778 pay per month for two months; and extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 10 March 2016, 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 applicant was diagnosed with: Cannabis Use Disorder; Problems Related to Employment. Report of Medical Examination, dated 17 March 2016, the examining medical physician noted in the comments section: Substance use disorder under appropriate eval. Report of Medical History, dated 17 March 2016, the examining medical physician noted in the comments section: have had increase in anxiety, especially when alone for period of time; have used behavior health to help with a time of depression; behavior health for depression; marijuana, cause of chapter; and undergoing active care for substance use/dependence disorder. 5. APPLICANT-PROVIDED EVIDENCE: Online application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is employed, has stayed out of trouble, and is looking forward to the future. 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) 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. (5) 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. (6) 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: 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 contends the chain of command found the applicant guilty of tampering with a UA. There was no proof the applicant tampered with the UA. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. The Army Military Human Resource Record (AMHRR) does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being angry and wanting to get out of the military and show the command what a failed UA looked like. 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 evidence of the applicant’s AMHRR shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. The applicant contends good service, including two combat tours. The applicant is employed, has stayed out of trouble, and is looking forward to the future. 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 and found that the applicant has the following potentially-mitigating diagnoses/experiences: Major Depressive Disorder (MDD) and Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed in service with an Adjustment Disorder and is diagnosed and service-connected by the VA for MDD. (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 MDD could potentially mitigate the applicant’s drug use as there is a nexus between MDD and self- medicating with substances, however it doesn’t in this case because the applicant admits in the applicant’s statement that the applicant intentionally used drugs as retribution for the Command finding the applicant guilty at Article 15 hearing. Additionally, the applicant’s MDD does not mitigate the applicant’s offenses of disobeying a lawful order and making a false official statement as there is no natural sequela between MDD and disobeying a lawful order or making a false official statement. (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 while the applicant’s MDD mitigates the applicant’s drug use, the applicant’s MDD does not outweigh the applicant’s medically mitigated drug use as the applicant statement reflects that the applicant used drugs as premeditated attempt to show the applicant’s chain of command what “a real failed UA looked like.” Further, the Board determined that the applicant’s MDD does not outweigh the medically unmitigated disobeying a lawful order and making a false official statement that Separation Authority considered in accordance with AR 635-200, paragraph 3-8 as reflected in the Commander’s report contained in the applicant’s AMHRR. b. Response to Contention(s): (1) The applicant contends the chain of command found the applicant guilty of tampering with a UA, but there was no proof the applicant tampered with the UA. The Board considered this contention and determined that, based on insufficient evidence in the applicant’s official record or provided by the applicant other than the applicant statement, a discharge upgrade is not warranted. (2) The applicant contends being angry and wanting to get out of the military and show the command what a failed UA looked like. The Board considered this contention and determined that the applicant drug use, failing to obey orders, and making a false statement is not an acceptable response to dealing with anger issues. Therefore, the applicant’s discharge was proper equitable. (3) The applicant contends good service, including two combat tours. The Board considered the totality of the applicant’s service record, including the applicant’s combat tours and MDD but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By intentionally using marijuana to fail a drug test, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. Further, the Board determined that the applicant’s MDD does not outweigh the medically unmitigated disobeying a lawful order and making a false official statement that Separation Authority considered in accordance with AR 635-200, paragraph 3-8 as reflected in the Commander’s report contained in the applicant’s AMHRR. (4) The applicant is employed, has stayed out of trouble, and is looking forward to the future. The Board considered this contention and determined that the applicant’s post-service accomplishments did not outweigh the applicant’s medically unmitigated misconduct disobeying a lawful order and making a false official statement that Separation Authority considered in accordance with AR 635-200, paragraph 3-8 as reflected in the Commander’s report contained in the applicant’s AMHRR. 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 despite applying liberal consideration of all the evidence before the Board because, while the applicant has a potentially mitigating condition, MDD, for drug use; it doesn’t in this case because the applicant admits in his statement that he intentionally used drugs as retribution for the Command finding the applicant guilty at Article 15 hearing. Further, the Board determined that the applicant’s MDD does not outweigh the misconduct of disobeying a lawful order and making a false official statement that the Separation Authority considered in accordance with AR 635- 200, paragraph 3-8 as reflected in the Commander’s report contained in the applicant’s AMHRR. The Board also considered the applicant’s contention that the applicant’s Command lacked evidence for an Article 15 guilty finding and determined that there is insufficient evidence to warrant an upgrade. Further, the Board considered the totality of the applicant’s record, including the applicant’s combat tours, anger issues, and the applicant’s MDD and determined that a change in the discharge is not warranted. 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. Therefore, the applicant’s General Discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable Discharge. (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: 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 AR20210002280 1