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, that the applicant's military service was exceptional until the reason for discharge. The applicant states being an excellent Soldier, and that the monthly counseling statements and the Noncommissioned Officer Evaluation Report (NCOER) will verify the applicant's service. The applicant states having made the mistake of attending a party and accepting drinks which were offered to the applicant, resulting in a failed urinalysis for drug use. The applicant believes the discharge should be changed because up to the failed urinalysis, the applicant was an outstanding Soldier. The applicant states the applicant's actions made the applicant a better person, parent, and spouse. Board Type and Decision: In a records review conducted on 11 August 2022, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's Major Depressive Disorder mitigating the applicant's offense - wrongful use of cocaine. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. b. . 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: 9 August 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 June 2016 (2) Basis for Separation: The applicant was informed of the following reasons: Between 26 and 29 March 2016, the applicant wrongfully used cocaine. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 30 June 2016 (5) Administrative Separation Board: On 30 June 2016, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 19 July 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 October 2012 / 5 years b. Age at Enlistment / Education / GT Score: 32 / HS Graduate / 124 c. Highest Grade Achieved / MOS / Total Service: E-5 / 15E2P, Unmanned Aircraft Systems Repairer / 6 years, 3 months, 26 days d. Prior Service / Characterizations: RA, 14 April 2010 - 9 October 2012 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM-3, AGCM-2, NDSM, GWOTSM, NCOPDR, ASR g. Performance Ratings: 1 August 2014 - 1 August 2015 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 14 April 2016, reflects the applicant tested positive for COC 833 (cocaine), during an Inspection Unit (IU) urinalysis testing, conducted on 29 March 2016. Developmental Counseling Form, dated 27 April 2016, for positive urinalysis result for cocaine. Army Substance Abuse Program (ASAP) Enrollment form, dated 27 April 2016, reflects the applicant was command-referred in the ASAP. Law Enforcement Report - Initial - Final, dated 16 May 2016, reflects an investigation established the applicant committed the offense of Wrongful Use of a controlled substance (Cocaine). The applicant was interviewed and denied the offense. FG Article 15, dated 24 May 2016, for wrongfully using cocaine (between 26 and 29 March 2016). The punishment consisted of a reduction to E-4; forfeiture of $1,241 pay per month for two months (suspended); extra duty for 45 days (30 days suspended); restriction for 45 days (suspended); and an oral reprimand. 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 28 April 2016, 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. The applicant was diagnosed with: Occupational Problem. Report of Medical History, dated 17 May 2016, the examining medical physician noted in the comments section: Servicemember states depression/anxiety resolved. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; NCOER; awards; training certificates; Service School Academic Evaluation Reports; FG Article 15; Enlisted Record Brief; Operator Qualification Record. 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 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 being innocent of using drugs but made a mistake of attending a party and accepting drinks offered to the applicant, resulting in a failed urinalysis. The Army Military Human Resource Record (AMHRR) reflects the applicant was provided the opportunity to consult with counsel during the Article 15 and separation proceedings to present matters on the applicant's behalf. 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 considered the service accomplishments and the quality of service. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Major Depressive Disorder (MDD), Single Episode, Moderate. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's MDD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant MDD mitigates the applicant's drug use as there is an association between MDD and use of alcohol/illicit drugs to self-medicate symptoms. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board found that the applicant's MDD outweighed the applicant's medically mitigated offense - drug use. b. Response to Contention(s): (1) The applicant contends being innocent of using drugs but made a mistake of attending a party and accepting drinks offered to the applicant, resulting in a failed urinalysis. The Board considered this contention during proceedings, but ultimately did not address the contention as the Board determined a discharge upgrade is warranted because the applicant's MDD outweighed the applicant's medically mitigated offense - wrongful use of cocaine. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention during proceedings, but ultimately did not address the contention as the Board determined a discharge upgrade is warranted because the applicant's MDD outweighed the applicant's medically mitigated offense - wrongful use of cocaine. (3) The applicant contends good service. The Board considered this contention during proceedings, but ultimately did not address the contention as the Board determined a discharge upgrade is warranted because the applicant's MDD outweighed the applicant's medically mitigated offense - wrongful use of cocaine. c. The Board determined that the characterization of service was inequitable because the applicant's Major Depressive Disorder outweighed the applicant's medically mitigated offense - wrongful use of cocaine. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant MDD which mitigated the applicant's misconduct of wrongful use of cocaine. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted to change the RE code to RE-3. 10. Board Action Directed: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions) d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210002624 1