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, irrelevant documents were added to the applicant’s case for prejudicial reasons. The applicant’s company commander was found to have not followed standard policy when handling the applicant’s case. The decision to involuntarily separate the applicant was made by another commander and not by the applicant’s acting commander. The decision was made by a commander whose last decision concerning a Soldier’s separation was overturned due to an Article 138, Uniform Code of Military Justice (UCMJ), finding. For these reasons, and despite the applicant’s dutiful adherence to the Army Substance Abuse Program, the applicant believes the applicant was unjustly separated with one month left on the contract. b. Board Type and Decision: In a records review conducted on 2 December 2022, 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, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 12 February 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 January 2016 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana between 15 September and 14 October 2015 and between 24 August and 22 September 2015; and hydrocodone between 20 and 22 September 2015. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 1 February 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 February 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 March 2012 / 4 years b. Age at Enlistment / Education / GT Score: 20 / GED / 133 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68W10, Health Care Specialist / 3 years, 10 months, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 13 October 2015, reflects the applicant tested positive for HYCOD 456 (hydrocodone), HYMOR 196 (hydromorphone); OXCOD 684 (oxycodone), OXMOR 818 (oxymorphone), and THC 2248 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 22 September 2015. Medical Review Officer Memorandum, dated 15 October 2015, reflects the applicant had a prescription which would have accounted for the positive urinalysis for oxycodone and oxymorphone on 22 September 2015. The applicant had a prescription for Percocet, dated 1 February 2013. The applicant did not have a prescription which would account for the positive urinalysis for hydrocodone and hydromorphone on 22 September 2015. Electronic Copy of DD Form 2624, dated 23 October 2015, reflects the applicant tested positive for THC 458 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 14 October 2015. Law Enforcement Report – Initial - Final, dated 27 October 2015, reflects an investigation established the applicant committed the offense of Wrongful Use of a Controlled Substance, when the applicant submitted a urine sample during a unit inspection which subsequently tested positive for hydrocodone, hydromorphone, and tetrahydrocannabinol (marijuana). FG Article 15, dated 5 January 2016, for wrongfully using marijuana (between 24 August and 22 September 2015 and between 15 September and 14 October 2015) and hydrocodone and hydromorphone (between 20 and 22 September 2015). The punishment consisted of a reduction to E-3 and extra duty for 45 days. The applicant’s Enlisted Record Brief (ERB), dated 15 February 2016, reflects the applicant was flagged for APFT failure (JA), effective 12 March 2015 and Drug Abuse (Adverse Action) (UA); and was ineligible for reenlistment due to Adverse Action Flag (Flag Codes A, H, L, M, U, V, and X) (9B). The applicant’s expiration term of service reflects 26 March 2016. Two Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Conditions: Report of Mental Status Evaluation, dated 5 November 2015, 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 medical diagnoses were documented in the Armed Forces Health Longitudinal Technology Application (AHLTA) for AXIS I, II, and III, in accordance with AR 40-66. The applicant had been screened for post-traumatic stress disorder (PTSD) and mild traumatic brain injury (mTBI) with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. Report of Medical Examination, dated 12 November 2015, the examining medical physician noted in the summary of defects and diagnoses section: Anxiety disorder and insomnia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; and Department of Veterans Affairs Statement in Support of Claim. 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) 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’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the separation action was initiated by a commander with a previous Article 138, UCMJ, complaint; the commander did not follow standard policy; and irrelevant documents were added to the case for prejudicial reasons. The Army Military Human Resource Record (AMHRR) reflects the separation was initiated by the Commander, A Company, 115h Combat Support hospital (Provisional) and the applicant was assigned to the unit at the time of separation. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command The applicant contends being separated unjustly with one month of service left on the contract. The applicant’s AMHRR reflects the applicant’s expiration term of service was 26 March 2016. Army Regulation provides retention beyond a Soldier’s ETS to process administrative separation proceedings pursuant to this regulation is not authorized. The regulation does not restrict processing a Soldier for separation before or on the Soldier’s ETS date. ? 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: Generalized Anxiety Disorder (GAD) and Depression. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s GAD and Depression existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that Anxiety is not a mitigating condition for drug use. Furthermore, applicant’s Depression was noted to be mild, and there is no evidence that it contributed to the drug use that led to the separation. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s GAD and Depression outweighed the basis for applicant’s separation – Marijuana and Hydrocodone use – for the aforementioned reasons. b. Response to Contention(s): The applicant contends the separation action was initiated by a commander with a previous Article 138, UCMJ, complaint; the commander did not follow standard policy; and irrelevant documents were added to the case for prejudicial reasons, and that the separation was unjust. The Board considered this contention and the applicant’s assertion, however the Board determined that there is insufficient evidence in official records, and the applicant did not provide supporting documentation of any arbitrary or capricious action taken by the separation authority to provide merit to the claim. Ultimately, the Board determined that there was insufficient evidence to support this contention. 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 GAD and Depression did not excuse or mitigate the offenses of Marijuana and Hydrocodone use. 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 and the applicant’s BH diagnoses, though not mitigating, are service limiting. 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 AR20210002302 1