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: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade honorable. The applicant seeks relief contending, in effect, the applicant self-referred into the substance use disorder clinical care for alcohol abuse due to depression and uncontrollable drinking. Months later, the applicant was notified by the leadership about failing a urinalysis and would be involuntary removed. During this process “Limited Use” evidence was used against the applicant reflecting in the Drug and Alcohol Management Information System (DAMIS). Limited use 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. In a records review conducted on 29 June 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, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 5 October 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 September 2017 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant used 3, 4-methylenedioxyamphetamine and marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 26 September 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 26 September 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 April 2017 / 4 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 1 month, 17 days d. Prior Service / Characterizations: RA, 19 August 2014 – 27 April 2017 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM-3, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Drug and Alcohol Management Information System, reflects the and applicant self-referred, dated of 6 July 2017. The basis for reflects: ALC MISUSE. Electronic Copy of DD Form 2624, dated 28 July 2017, reflects the applicant tested positive for MDA and THC 34 (marijuana), during an Inspection Unit (IU) urinalysis testing, conducted on 30 May 2017. Army Substance Abuse Program (ASAP) enrollment, dated 3 August 2017, indicated the applicant was command referred for improper use of drugs. Numerous Developmental Counseling Forms, for various acts of misconduct, including a DA Form 4856 dated 31 July 2017 for a failed UA on 30 May 2017 in violation of Article 134. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 23 August 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. The applicant was diagnosed with: Alcohol Use Disorder, Drug Use, Occupational Problem, Relationship Problems. Report of Medical History, dated 12 September 2017, the examining medical physician noted in the comments section: 17d, e, f-SM being evaluated for depression and sleep disorders. SM does not meet criteria for sleep study. SM to continue with therapy at BH. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DAMIS; DD Form 2624. 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: Results of command-directed drug or alcohol testing that are inadmissible under the MRE; Results of a drug or alcohol test collected solely as part of a safety mishap investigation undertaken for accident analysis and the development of countermeasures; Information concerning drug or alcohol abuse or possession of drugs incidental to personal use, including the results of a drug or alcohol test, collected as a result of a Soldier’s emergency medical care solely for an actual or possible alcohol or other drug overdose; A Soldier’s self-referral to BH for SUD treatment; Admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to treatment and provided by Soldiers as part of their initial entry into SUD treatment; Drug or alcohol test results, if the Soldier voluntarily submits to a DoD or Army SUD treatment before the Soldier has received an order to submit for a lawful drug or alcohol test; and, the results of a drug or alcohol test administered solely as a required part of a DoD or Army SUD treatment program. 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 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. 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 “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). 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: 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 self-referring in the substance use disorder clinical care for alcohol abuse due to depression and uncontrollable drinking. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service Alcohol Use Disorder, Drug Use, Occupational Problem, Relationship Problems. Army Substance Abuse Program (ASAP) enrollment, dated 3 August 2017, indicated the applicant was command referred for improper use of drugs. The applicant’s record also includes a DA 4856 dated 31 July 2017 for failing a UA on 30 May 2017. The applicant’s AMHRR reflects a counseling form dated Army Substance Abuse Program (ASAP) enrollment, dated 3 August 2017, indicated the applicant was command referred for improper use of drugs. The record shows the applicant underwent a mental status evaluation (MSE) on 23 August 2017, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. The applicant contends being notified by the leadership of a failed urinalysis and that the Command intended to initiate involuntary separation; the applicant contends that the Command improperly used limited use evidence against the applicant as reflected in the Drug and Alcohol Management Information System (DAMIS). The applicant’s AMHRR reflects a counseling form dated Army Substance Abuse Program (ASAP) enrollment, dated 3 August 2017, indicated the applicant was command referred for improper use of drugs. The applicant’s record also includes the applicant’s notification of separation dated 25 September 2017. 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: Adjustment Disorder (DO) and Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that both Adjustment DO and MDD were diagnosed while the applicant was on active duty. (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’s Adjustment DO and MDD do not mitigate the applicant’s drug use offense. While the applicant was diagnosed in service with Adjustment DO and MDD and post-service with non-service connected MDD, there is no indication that either of these behavioral health conditions contributed to applicant’s illegal drug use as the applicant’s medical records indicate that the applicant indicated used MDMA while at a party. The applicant’s drug use is more likely than not related to his recreational drug use than for self-medication purposes (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, the Board determined that the available evidence did not support a conclusion that the applicant’s Adjustment DO and MDD outweighed the applicant’s medically unmitigated offense – illegal drug use. b. Response to Contention(s): (1) The applicant contends self-referring in the substance use disorder clinical care for alcohol abuse due to depression and uncontrollable drinking. The Board liberally considered this contention and determined that a discharge upgrade is not warranted because, while the applicant self-referred to ASAP, the referral was for alcohol abuse, not due to applicant’s use of MDMA and marijuana- illegal drugs, which the applicant’s official records indicate the applicant used for recreational purposes and was the basis for the applicant’s discharge. Therefore, the discharge was proper and equitable. (2) The applicant contends months later the applicant was notified by the leadership about failing a urinalysis, that the applicant would be involuntary removed, and that during this process Limited Use evidence was used against the applicant as reflected in the DAMIS. The Board considered this contention and determine that Command’s use of the applicant’s self- referral into ASAP for alcohol intoxication does not constitute a limited use violation because the applicant’s official record reflects that the applicant tested positive for MDMA and THC prior to the date the applicant self?referred into the ASAP for Alcohol intoxication and applicant did not voluntarily disclose that drug positive as part of the applicant’s initial entry to SUD treatment. Therefore, the applicant’s discharge is proper and equitable as there was no limited use violation. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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, the Board determined that the available evidence did not support a conclusion that the applicant’s Adjustment DO and MDD outweighed the applicant’s medically unmitigated offense – illegal drug use. The Board also considered the applicant’s impropriety contention regarding a limited use violation and found that the applicant’s self-referral to SUD for alcohol was not protected evidence as stated in paragraph 9b(2), above. Finally, the Board considered the applicant’s contentions regarding the applicant’s self-referral to SUDs related to alcohol, depression and uncontrollable thinking and determined that the totality of the applicant’s record does not warrant an upgrade. 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. Therefore, the applicant’s General Discharge was proper and equitable as the applicant’s misconduct fell below that level of 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 AR20210002821 1