1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant entered active duty on 5 January 2011 and was discharged on 31 July 2014. The applicant graduated from one station unit training (OSUT); completed Airborne training; and was selected for Ranger assessment, but was injured during the course. After the injury, the applicant was assigned as an Infantryman at Fort Stewart, in 2011. The applicant fit in well in the platoon and the unit was preparing for deployment to Afghanistan in 2012. Shortly before deployment, the applicant was involved in a single vehicle accident. As a result of the applicant’s injuries, the applicant was forced to stay back with the rear detachment and became depressed because of the inability to deploy. The applicant made one friend in rear-detachment, Specialist (SPC) S., an Infantryman. In June 2013, the unit returned from deployment and the applicant was an outsider in the old platoon. The chain of command saw potential in the applicant and moved the applicant to headquarters platoon as the unit's chemical, biological, radiological, and nuclear defense (CBRN) noncommissioned officer and an additional duty as First Sergeant R.’s HMMV driver. The applicant excelled but coped with the psychological issues from not deploying. In 2014, S., who was out of the service at the time, invited the applicant to a party, which the applicant succumbed to peer pressure and smoked marijuana. The next week, the applicant tested positive for THC in a 100 percent unit urinalysis. The applicant was counselled and informed the applicant would be separated from the service. The applicant accepted responsibility for the actions and continued to perform to standard. The applicant was given a Field Grade Article 15 and completed the Army Substance Abuse Program (ASAP). The applicant is an employee of the U.S. Department of State as a Senior Adjudicator, equivalent to a Captain/O-3; graduated Magna Cum Laude from Colorado Technical University with a Science Degree in Homeland Security and Emergency Management; and is a member of Sigma Kappa Psi, an honors organization. The applicant is married, living a productive life, and has never again used any illicit drugs. The applicant’s discharge does not reflect the totality of the applicant’s service and several members of the chain of command support the discharge upgrade. The applicant’s ability to serve was impaired by severe psychological issues relating to the inability to deploy. The applicant’s post-service contributions to society, record of sobriety, and civilian employment reflect a characterization of honorable and the narrative reason should be changed to read “Secretarial Authority.” The applicant further details the contentions in a self-authored statement submitted with the application, to include explaining the driving under the influence “spice” incident and how PTSD, survivor’s guilt, and bullying led to the applicant using or self-medicating with illegal substances. b. Board Type and Decision: In a records review conducted on 6 October 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Although medical mitigation applied to the APR 2014 marijuana use which occurred after the applicant-inducted vehicle rollover accident leading to the applicant’s Other Specified Trauma and Stressor Related Disorder. The applicant’s Other Specified Trauma and Stressor Related Disorder did not excuse or mitigate the offenses in August 2012 of DUI less safe, admitted synthetic marijuana use, and fleeing the scene of an accident. 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: 31 July 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 June 2014 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana, a schedule I controlled substance, between 26 March and 25 April 2014. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 July 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 July 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 January 2011 / 6 years, 19 weeks b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 6 months, 26 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: Military Police Report, dated 19 August 2012, reflects the applicant was apprehended for: driving under the influence, drugs, less safe (off post); reckless driving (off post); and failure to stop at accident involving injury (off post). General Officer Memorandum Of Reprimand, dated 14 January 2013, reflects the applicant was stopped for fleeing the scene of an accident on 18 August 2012. Upon questioning, the applicant admitted to using spice prior to driving. The applicant was cited with driving under the influence, less safe. Electronic Copy of DD Form 2624, dated 6 May 2014, reflects the applicant tested positive for THC 23 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 25 April 2014. FG Article 15, dated11 June 2014, for wrongfully using marijuana (between 22 and 25 April 2014). The punishment consisted of a reduction to E-2; forfeiture of $500 pay per month for two months ($500 suspended); extra duty for 45 days; and restriction for 45 days (suspended). Report of Mental Status Evaluation, dated 19 June 2014, reflects the applicant could understand the difference between right and wrong and could participate in the proceedings. Three Developmental Counseling Forms, for positive urinalysis for marijuana and pending separation proceedings. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided Department of Veterans Affairs Rating Decision, dated 2 August 2018, which reflects the applicant was rated 30 percent service-connected disability for other specified trauma and stressor-related disorder (also claimed as post-traumatic stress disorder (PTSD) and depression). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; self-authored statement; Declaration in Support; five character references; Civil Service Performance Plan and Appraisal; VA Rating Decision; Colorado Technical University transcripts; attorney letter – personal appearance response. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends being an employee of the U.S. Department of State as a Senior Adjudicator, equivalent to a Captain/O-3; graduating Magna Cum Laude from Colorado Technical University with a Science Degree in Homeland Security and Emergency Management; and being a member of Sigma Kappa Psi, an honors organization. The applicant is married, living a productive life, and has never again used any illicit drug. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 applies toa 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Drug Abuse),” and the separation code is “JKK.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends PTSD and being bullied affected behavior which led to the discharge. The applicant provided a VA rating decision indicating the applicant was rated 30 percent service-connected disability for other specified trauma and stressor-related disorder (also claimed as post-traumatic stress disorder (PTSD) and depression). The Army Military Human Resource Record (AMHRR) shows the applicant underwent a mental status evaluation (MSE) on 19 June 2014, which indicates the applicant could understand the difference between right and wrong and could participate in the proceedings. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends being bullied by members of the unit. There is no evidence in the AMHRR the applicant sought assistance or reported the bullying. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service. The applicant contends being an employee of the U.S. Department of State as a Senior Adjudicator, equivalent to a Captain/O-3; graduating Magna Cum Laude from Colorado Technical University with a Science Degree in Homeland Security and Emergency Management; and being a member of Sigma Kappa Psi, an honors organization. The applicant is married, living a productive life, and has never again used any illicit drugs. 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. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good military service and/or good conduct after leaving the Army. 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: Other Specified Trauma and Stressor Related Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed, and service connected by the VA for Other Specified Trauma and Stressor Related Disorder. Service connection establishes that applicant's disorder existed 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 given the nexus between a trauma disorder and self-medicating with substances, applicant’s BH condition may have contributed to the marijuana use that led to applicant’s separation. Mitigation is not provided for the vehicle rollover accident of fleeing the scene, which occurred prior to the mitigating condition, and where the applicant was smoking synthetic marijuana at the time of the accident. (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 Other Specified Trauma and Stressor Related Disorder outweighed the basis for applicant’s separation – marijuana use – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered the contention and determined a narrative reason change is not warranted as the applicant was separated for the misconduct of marijuana use. Synthetic marijuana use contributed to the vehicle rollover accident that occurred prior to medical diagnosis of Stressor Related Disorder; and that accident was the stressor that produced the diagnosis. The applicant was properly and equitably discharged. (2) The applicant contends PTSD affected behavior which led to the discharge. The Board considered this contention and the applicant’s assertion of PTSD, however the Board determined that there is insufficient evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation due to the severity of the offenses. The applicant was properly and equitably discharged. (3) The applicant contends being bullied by members of the unit. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that there is insufficient evidence to support this claim, ultimately the applicant was properly and equitably discharged. (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. By using drugs, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (5) The applicant desires to rejoin the Military Service. The Board considered this contention and voted to maintain the RE-code to a RE-4. Recruiters can best advise a former service member as to the Army’s needs at the time. (6) The applicant contends being an employee of the U.S. Department of State as a Senior Adjudicator, equivalent to a Captain/O-3; graduating Magna Cum Laude from Colorado Technical University with a Science Degree in Homeland Security and Emergency Management; and being a member of Sigma Kappa Psi, an honors organization. The applicant is married, living a productive life, and has never again used any illicit drugs. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention and determined that the applicant was properly and equitably discharged due to marijuana abuse and applicant history of spice use. 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, Although medical mitigation applied to the APR 2014 marijuana use which occurred after the applicant-inducted vehicle rollover accident leading to the applicant’s Other Specified Trauma and Stressor Related Disorder. The applicant’s Other Specified Trauma and Stressor Related Disorder did not excuse or mitigate the offenses in August 2012 of DUI less safe, admitted synthetic marijuana use, and fleeing the scence of an accident. . . The applicant’s misconduct diminished the applicant’s quality of service below that level of sufficiently meritorious service to warrant an HD. (2) 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. (3) 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. (4) 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 AR20170010400 1