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 to honorable, and a change to the applicant’s SPD and Re-Entry Code. The applicant seeks relief contending, in effect, suffering from depression stemming from the death of the applicant’s father. This, in part, led the applicant to self-medicate, which affected the applicant’s judgment, mitigating the applicant’s conduct leading to discharge. The applicant accepts responsibility for the misconduct, and seeks to rejoin the service in addition to receiving an upgrade in characterization. In a records review conducted on 23 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: 30 June 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 April 2017 (2) Basis for Separation: The applicant was informed of the following reasons: on divers occasions the applicant wrongfully used Marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 5 April 2017, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 May 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 April 2015 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Culinary Specialist / 2 years, 2 months, 24 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: Poland / None f. Awards and Decorations: AAM, NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 30 December 2016, reflects the applicant tested positive for THC 44, during an Inspection, Random (IR) urinalysis testing, conducted on 7 December 2016. FG Article 15, dated 24 March 2017, for wrongfully using marijuana on 7 November 2016, 7 December 2016, 5 December 2016, and 5 January 2017, in violation of Article 112a, UCMJ. Punishment consisted of a reduction to E-1, forfeiture of $799 pay per month for two months (1 month suspended), and 45 days of extra duty and restriction. Electronic Copy of DD Form 2624, dated 3 February 2017, reflects the applicant tested positive for THC 179, during an Inspection Unit (IU) urinalysis testing, conducted on 5 January 2017. Developmental Counseling Forms, for drug abuse and testing positive on urinalysis testing. Report of Mental Status Evaluation (MSE), dated 13 June 2017, reflects no diagnosis. The MSE further reflects the applicant could understand and participate in administrative proceedings, appreciate the difference between right and wrong, and the applicant was psychiatrically cleared for any administrative action deemed appropriate by command. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Behavioral Health Condition(s): The applicant asserts Depression associated with the death of the applicant’s father. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; and DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states serving the community as a law enforcement officer, and staying drug-free. 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. (3) 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 suffering from depression stemming from the death of the applicant’s father, which affected the applicant’s judgment, mitigating the conduct leading to discharge. The AMHRR reflects the applicant underwent a MSE and had no behavioral health diagnosis, and the applicant could understand and participate in administrative proceedings, appreciate the difference between right and wrong, and the applicant was psychiatrically cleared for any administrative action deemed appropriate by command. The applicant contends the SPD code should be changed. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c(2), is “JKK.” 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 applicant states the applicant is drug free and would like to continue to service as a law enforcement officer in the applicant’s community. 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 no behavioral health diagnosis. However, the applicant asserts Depression, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s medical records contained no behavioral health diagnosis; only the applicant’s self-report of grief associated with the applicant’s father’s death in conjunction with the applicant’s Chapter 14 Mental Status Evaluation. However, the applicant asserts Depression which may be sufficient evidence to establish that the applicant asserted Depression existed during service under liberal consideration. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and determined that, while Depression could mitigate drug use based on the nexus between self-medication and Depression, the applicant’s asserted Depression does not mitigate the applicant’s drug offense because there insufficient evidence to support that applicant had a Depression diagnosis or any other mitigating behavioral health condition during service as the applicant’s official medical record does not include any behavioral health diagnosis. The only behavioral health encounter listed in the applicant’s official record was a self-report of grief associated with the applicant’s father’s death conducted in conjunction with the applicant’s Chapter 14 Mental Status Evaluation. Further, there is no evidence that the VA the applicant for Depression or any other behavioral health condition and the applicant did not provide a Depression diagnosis from a civilian provider. Without additional medical evidence supporting an actual in-service Depression or other behavior health diagnosis, the Board Medical Advisor determined the applicant’s asserted Depression does not mitigate the applicant’s discharge. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that, while the applicant’s asserted Depression could outweigh the applicant’s drug use, the Board could not determine whether the applicant’s asserted Depression actually outweighs the applicant’s drug use without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board is unable to determine if the applicant’s asserted Depression outweighs the applicant’s discharge – wrongfully using marijuana. b. Response to Contention(s): (1) The applicant contends suffering from depression stemming from the death of the applicant’s father, which affected the applicant’s judgment, mitigating the conduct leading to discharge. The Board determined that, while the applicant’s asserted Depression could outweigh the applicant’s drug use, the Board could not determine whether the applicant’s asserted Depression actually outweighs the applicant’s multiple wrongful uses of marijuana without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board is unable to determine if the applicant’s asserted Depression outweighs the applicant’s discharge – wrongfully using marijuana. The Board also considered the totality of the applicant’s record, including the applicant’s asserted Depression and determined that, because there is insufficient evidence in the applicant’s official record or provided by the client, a discharge upgrade is not warranted. (2) The applicant contends the SPD code should be changed. The Board considered this contention and determined that the applicant received the appropriate SPD code for a discharge specified by AR 635-200, paragraph 14-12c(2) is “JKK.” Therefore, no change is warranted. (3) The applicant desires to rejoin the Military Service. The Board considered this contention and determined the applicant’s RE-code is proper and equitable due to the seriousness nature of the applicant’s misconduct - wrongfully using marijuana on multiple occasions. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (4) The applicant states serving the community as a law enforcement officer, and staying drug-free. The Board considered this contention and determined that, based on the totality of the applicant’s record, including the applicant’s post-service accomplishments and the applicant’s asserted Depression, a discharge is not warranted due to the seriousness nature of the applicant’s misconduct - wrongfully using marijuana on multiple occasions and the applicant provided insufficient evidence to support medical mitigation for the applicant’s asserted Depression. 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, the Board determined that, while the applicant’s asserted Depression could outweigh the applicant’s drug use, the Board could not determine whether the applicant’s asserted Depression actually outweighs the applicant’s drug use without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board is unable to determine if the applicant’s asserted Depression outweighs the applicant’s discharge – wrongfully using marijuana. The Board also considered the totality of the applicant’s record, including the applicant’s asserted Depression but determined that a discharge upgrade is not warranted due as there is insufficient evidence to establish medical mitigation. 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 multiple wrongful uses of marijuana 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 AR20210002868 1