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 to honorable. The applicant seeks relief contending, in effect, the applicant’s Army record was impeccable. During the applicant’s military career, there was only one incident, which was because of the applicant’s divorce proceedings. During this time, the applicant had little to no legal counseling by the Army and received no support from the unit. In the end, the applicant was not offered forfeiture of pay or extra duty to compensate for the urinalysis test. As a result, the applicant received an under other than honorable conditions as a punishment, which was too harsh. The applicant received various awards for service. The actions leading to the applicant’s discharge were because the applicant was going through a divorce, which caused depression and the applicant to make very poor decisions. The applicant failed the urinalysis and went absent without leave (AWOL). The applicant believes the applicant is eligible for an upgrade because the applicant did not receive the proper counseling. The applicant never used drugs until this point in the applicant’s career. The applicant was under a large amount of stress and pressure and instead of being able to receive the help the applicant needed; the applicant was just kicked out of the service. The applicant has bettered the applicant’s life. The applicant opened a business in 2011, a Handyman and Lawncare Service. The applicant enjoyed the birth of two children in 2010 and remarried in 2013. The applicant closed the business and is employed full time with a lumber company for the past two years. b. Board Type and Decision: In a records review conducted on 20 October 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 / Under Other Than Honorable Conditions b. Date of Discharge: 7 December 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 October 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana, a Schedule I controlled substance and wrongfully used cocaine, a schedule II controlled substance. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF / The Army Military Human Resource Record is void of the second page (signature page) of the Election of Rights. The first page indicates the applicant unconditionally waived consideration of the case before an administrative separation board. (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 30 November 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 June 2008 / 4 years, 23 weeks b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Operation / 1 year, 2 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The DD Form 2624, undated, reflects the applicant tested positive for COC (cocaine) / THC (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 27 May 2009. The Criminal Investigation Division (CID) Report of Investigation - Initial Final, dated 30 June 2009, reflects an investigation established probable cause to believe the applicant committed the offense of Wrongful Use and Possession of Cocaine and Marijuana when the submitted a urine specimen on 27 May 2009, during the conduct of a unit urinalysis test, which subsequently tested positive for Cocaine and Marijuana. Three Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Absent Without Leave (AWOL),” effective date 8 July 2009; From “AWOL,” to “Confined by Civil Authorities (CCA),” effective date 31 July 2009; and From “Confined by Civil Authorities (CCA)” to “Present for Duty (PDY),” effective date 11 August 2009. Clarksville Police Department, dated 29 July 2009, reflects the applicant was arrested for driving under the influence of alcohol and drugs. The police report revealed the applicant’s spouse contacted 911 and reported the applicant was AWOL. The applicant violated a no contact order regarding the applicant’s spouse. The police were in process of securing a warrant of arrest for violating the contact order when the applicant was observed driving and was stopped for a suspended license and being AWOL. While the applicant was being taken into custody the officer noticed the applicant’s blood shot eyes and the odor of marijuana emitting from the applicant. The officers found in the applicant’s vehicle roaches and a green leafy substance, which tested positive for THC. General Officer Memorandum Of Reprimand, dated 18 August 2009, reflects the applicant was driving a motor vehicle in the state of Tennessee under the influence of an illegal substance on 29 July 2009. The applicant admitted to recently smoking marijuana before operating the vehicle. FG Article 15, dated 20 August 2009, for wrongfully using cocaine (between 21 and 27 May 2009) and wrongfully using marijuana (between 27 April and 27 May 2009). The punishment consisted of a reduction to E-1; forfeiture of $699 pay per month for two months; and extra duty and restriction for 45 days. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 35 days: AWOL, 8 July 2009 – 30 July 2009 / Apprehended by Civil Authorities CCA, 31 July 2009 – 11 August 2009 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided four Medical Record – Respect – Mil Primary Care Screenings, which reflect: On 12 May 2009, the applicant marked “Yes” to “Feeling down, depressed, or hopeless.” The applicant scored 12 when screened for depression. The provider indicated the applicant had a lack of sleep. On 1 June 2009, the applicant marked “Yes” to “Feeling down, depressed, or hopeless.” The applicant scored 6 when screened for depression. The provider indicated the applicant had mild stress and there was no referral made because there was a false positive. The risk assessment was low. On 12 and 18 June 2009, the applicant marked “No” to “Feeling down, depressed, or hopeless.” The applicant provided, Chronological Record of Medical Care, dated between 12 July to 4 November 2008, reflects the applicant was diagnosed with Alcohol Disorders; Alcohol Abuse; Cannabis Abuse; Insomnia because of stress; Partner Relational Problem; and Other specified Family circumstances. Report of Behavioral Health Evaluation, dated 2 July 2009, reflects the applicant had the mental capacity to understand and participate in the proceedings. The applicant was diagnosed with: Alcohol Abuse; Marijuana Abuse. The AMHRR is void of the second page of the evaluation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; self-authored statement; third-party character reference; Congressional documents; in-service medical records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends starting a business; remarrying and having two children; and after closing the applicant’s business, maintaining employment with a lumber company. 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) 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. (6) 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. (7) 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 a 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 family issues affected behavior and ultimately caused the discharge. There is no evidence in the Army Military Human Resource Record (AMHRR) the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant’s AMHRR shows the applicant underwent a behavioral health evaluation (BHE) on 2 July 2009, which indicates the applicant had the mental capacity to understand and participate in the proceedings. The applicant was diagnosed with alcohol and marijuana abuse. The BHE was considered by the separation authority. The applicant provided the Chronological Record of Medical Care, which reflects the applicant was diagnosed with alcohol disorders; alcohol abuse; cannabis abuse; insomnia because of stress; partner relational problem; and other specified family circumstances. The applicant contends the command punished the applicant with a discharge which was too harsh instead of assisting the applicant. The evidence of record 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 AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, paragraph 3-5c 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 Board considers service accomplishments and the quality of service. The third party statement provided with the application speaks highly of the applicant. It recognizes the applicant’s good conduct after leaving the Army. The applicant contends starting a business; remarrying and having two children; and after closing the applicant’s business, maintaining employment with a lumber company. 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: Self-asserted depression and Anxiety. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant self-asserts Depression and Anxiety existing 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 the applicant was not diagnosed in service with any BH conditions other than substance abuse, and is not service connected by the VA for any BH conditions. Applicant self-asserts depression during military service, but neither in-service or VA medical records support the assertion. (4) Does the condition or experience outweigh the discharge? No. The available evidence did not support a conclusion that the applicant’s self-asserted Depression outweighed the applicant’s medically unmitigated offenses of substance abuse, nor the contributing misconduct of AWOL and violating a no contact order - misconduct that the separation authority considered to determine the applicant’s characterization of service. b. Response to Contention(s): (1) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant’s misconduct – substance abuse, AWOL, and violating a no contact order is not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (2) The applicant contends the command punished the applicant with a discharge which was too harsh instead of assisting the applicant. The Board considered this contention and determined that the evidence of record 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 discharge was proper and equitable, and there is no evidence of the command acting in an arbitrary or capricious manner other than the applicant’s statement. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and determined that Army Regulation 635-200, paragraph 3-5c stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization and that the discharge was proper and equitable. (4) The applicant contends good service. The Board considered the totality of the applicant’s service record, 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. Substance abuse, AWOL, and violating a no contact order diminish the quality of service below that meriting an honorable discharge at the time of separation. (5) The applicant contends starting a business; remarrying and having two children; and after closing the applicant’s business, maintaining employment with a lumber company. The Board considered this contention and determined that the applicant’s post-service accomplishments do not outweigh the applicant’s substance abuse, AWOL, and violating a no contact order. 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 self- asserted depression did not excuse the applicant’s misconduct of substance abuse, AWOL, and violating a no contact order. 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. The Board also considered the applicant’s contention that the Command punished the applicant with a discharge instead of helping the applicant and found that a discharge upgrade is not warranted as the weight of the evidence reflects that 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 Board also considered the applicant’s contention that the applicant’s drug use was inequitable because this misconduct was an isolated incident and found that Army Regulation authorizes discharges for drug use as the applicant’s misconduct was reflected by this single incident and provides the basis for a characterization. Finally, the Board considered the applicant’s contention of good service, post-service accomplishment, and family issues and determined that the totality of the applicant’s record does not warrant a discharge upgrade due to the seriousness of the applicant’s substance abuse, AWOL offense, and violating a no- contact order. Therefore, the applicant’s Under Other Than Honorable Discharge was proper and equitable as the applicant’s misconduct fell below that level of satisfactory service warranting a General Discharge or 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, 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. 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 AR20210002506 1