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 and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, being separated from the Army under Chapter 9 for Drug Rehabilitation Failure. The command stated the applicant wrongfully used cocaine on or about 23 May 2017, this was within the 12-month period following removal from the Army Substance Abuse Program. The command provided the applicant and the separation authority with a separation packet with no proof or evidence the applicant used cocaine after released from the ASAP. The Command could not provide any proof the applicant used cocaine. The applicant is requesting a change in characterization of discharge and requests to be separated honorably because the separation was unjust and without any evidence of cocaine use for a second time. b. Board Type and Decision: In a records review conducted on 8 September 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. Ch Reason / Authority / Codes / Characterization: Drug Rehabilitation Failure / AR 635-200, Chapter 9 / JPC / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 11 August 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 July 2017 (2) Basis for Separation: The applicant was informed of the following reasons: Between on or about 28 December 2016 and on or about 3 January 2017, the applicant wrongfully used cocaine. On 31 January 2017, the applicant was assessed and enrolled into the Army Substance Abuse Program (ASAP). On 11 April 2017 the applicant successfully completed the ASAP. During the 12-month period following removal from this program the applicant had a subsequent drug- related incident, to wit: between on or about 19 May 2017 and on or about 23 May 2017, the applicant wrongfully used cocaine. The applicant is deemed to be a drug abuse rehabilitation failure IAW paragraph 1-7C (5), AR 600-85. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 July 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 August 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 May 2013 / 4 years, 21 weeks b. Age at Enlistment / Education / GT Score: 23 / Bachelor’s Degree / 116 c. Highest Grade Achieved / MOS / Total Service: E-5 / 42A2P, Human Resources Specialist, 4 years, 3 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea f. Awards and Decorations: JSAM-2, AAM, AGCM, NDSM, GWOTSM, NCOPDR, ASR, MOVSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 7 February 2017, for wrongfully using cocaine (between 28 December 2016 and 3 January 2017). The punishment consisted of a reduction to E-4; forfeiture of $1,157 for one month and extra duty; restriction for 45 days and oral reprimand. Report of Mental Status Evaluation, dated 30 June 2017, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. Commander’s Report dated 18 July 2017, reflects, on 12 September 2016, the applicant received a Company Grade Article 15 for stealing from Papa Johns of a value of about $28, signed an endorsement of a credit card with intent to defraud, and was drunk and disorderly. The applicant was found guilty and sentenced to 14 days extra duty. The applicant’s Enlisted Record Brief (ERB), dated 11 August 2017, reflects the applicant was flagged for Drug Abuse (Adverse Action) (UA) effective 23 June 2017; Punishment Phase (HA) effective 12 July 2017; Involuntary Separation or Discharge (Field Initiated) (BA) effective 12 July 2017. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application. 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 600-85 defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10–13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to “Honorable” if protected evidence is used. Protected evidence under this policy includes: e. 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 9 outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to the Army Substance Abuse Program (ASAP) for alcohol or drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. (5) Paragraph 9-4, stipulates the service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. An honorable discharge is mandated in any case in which the Government initially introduces into the final discharge process limited use evidence as defined by AR 600–85. f. 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 “JPC” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 9, for drug rehabilitation failure. g. 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 narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 9, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “drug rehabilitation failure,” and the separation code is “JPC.” 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 the command stated the applicant wrongfully used cocaine on or about 23 May 2017, which was within the 12-month period following removal from the Army Substance Abuse Program. The command provided the applicant and the separation authority with a separation packet with no proof or evidence the applicant used cocaine after release from the ASAP. The applicant’s Enlisted Record Brief (ERB), dated 11 August 2017, reflects the applicant was flagged for Drug Abuse (Adverse Action) (UA) effective 23 June 2017; Punishment Phase (HA) effective 12 July 2017; Involuntary Separation or Discharge (Field Initiated) (BA) effective 12 July 2017. The separation packet does not include any evidence of cocaine use on or about 23 May 2017. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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? No. The Board’s Medical Advisor, a voting member, reviewed DoD and VA medical records and found that the applicant’s official medical records do not reflect any potentially mitigating BH diagnoses. Further, the applicant did not provided documents or testimony that the applicant had a potentially mitigating condition or experience that may excuse or mitigate the applicant’s discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined there was no evidence of a mitigating BH condition or other mitigating circumstances for consideration, thus the discharge was proper and equitable. (2) The applicant contends that the Command provided the applicant and the separation authority with a separation packet with no proof or evidence the applicant used cocaine after released from ASAP, but the Command could not provide any proof the applicant used cocaine. The Board considered this contention and determined that, based on the weight of the evidence, the applicant’s discharge is proper and equitable. The applicant’s official records reflect that the applicant’s commander notified the applicant of the 19–23 May 2017 drug positive for cocaine, the applicant was provided and signed an Election of Rights document, and the applicant was represented by Trial Defense Services (TDS). Further, the Board determined there is no evidence in the applicant’s official record or provided by the applicant that applicant or the applicant’s TDS counsel made a request for the supporting positive urinalysis laboratory documents as required IAW AR 635-200, paragraph 2-2c(3) (2016). Therefore, no change is warranted. 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, there were no mitigating factors for the Board to consider. The Board considered the applicant’s contention of not receiving the 2nd UA test results, but determined that the applicant’s integrity is questionable due to prior fraud and theft as explained in Article 15 proceedings since it is the applicant’s word against the presumption of government regularly since the burden of proof lies on the applicant to prove an inequity occurred. 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. 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 AR20210002542 1