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. The applicant seeks relief contending, in effect, on 4 May 2011, while stationed at Fort Bragg, the applicant was coming on base in the early evening. During a random vehicle inspection at the main gate, a very small amount of JWH18 (known as Spice) was found in the applicant’s vehicle, but the contraband was not the applicant’s. The applicant admitted to it because it was in the applicant’s possession. The Criminal System revealed no derogatory information, as the applicant had never been in trouble before. After the incident, the applicant was punished under Article 15, UCMJ. The applicant completed the punishment with a positive attitude and made a constant effort to rehabilitate and make better choices in associates. The applicant’s supervisors recognized these efforts, commended the performance, and highly recommended retention in the Army. The applicant volunteered and successfully completed Substance Abuse Classes, which demonstrated a willingness to improve and a desire to remain in the Army. During this time of rehabilitation, the applicant’s best friend, C.D., requested the applicant’s company to go downtown, but the applicant refused to avoid trouble. On 21 September 2011, C.D. was murdered, as a part of a gang initiation, and the applicant lives with the guilt. The applicant noticed the command allowed other Soldiers with more serious drug offenses to stay in the military. The applicant believed with the support of the leadership, the applicant would remain in the Army and be transferred to another unit, or at least receive an honorable discharge. Months passed and the immediate leaders had no indication the applicant would be separated, but assumed the command was waiting transfer to another unit. The applicant repeatedly was told, based on exemplary service and outstanding leadership, the applicant would remain in the service, but began to receive contradictory information regarding discharge. The next month the information would change to the applicant would be allowed to stay in the service. In February 2012, to the applicant’s surprise and the immediate chain of command's, the applicant was presented with separation documents. The applicant desired to remain in the military, as other family members served. The applicant was informed the discharge was used as an example and because of military “downsizing.” The applicant was devastated. The applicant was informed there were no other options, was not afforded the opportunity to seek guidance or counsel, and was discharged within weeks. Since the discharge, the applicant has not been charged or convicted of any criminal offenses; is attending full-time school; maintains full-time employment, and has been an upstanding citizen. The applicant understands the actions had consequences, but does not understand not receiving an honorable discharge. There were no repeat offenses, and the applicant did everything required and beyond to rehabilitate show a desire to remain in the military and retire. The applicant believes the quality of service is deserving of an honorable and did not deserve “serious offense,” as the narrative reason for separation. The applicant provided a personal statement and letters of recommendation from several members of the chain of command who advocated for the applicant’s character and continuance of military service. The applicant further details the contentions in a supplemental self-authored statement provided with the application. In a records review conducted on 25 May 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 (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 21 March 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 February 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully possessed Spice on 4 May 2011, in violation of paragraph 4-2(p)(1), Army Regulation 600-85, dated 2 December 2009. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF / The Election or Rights reflects the applicant was given the opportunity to confer with counsel, but does not reflect whether the applicant waived legal counsel or consulted legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 March 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 April 2009 / 4 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12Y10, Geospatial Engineer / 2 years, 10 months, 24 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation - Initial Final, dated 10 May 2011, reflects an investigation established probable cause to believe the applicant committed the offense of Wrongful Possession of a Controlled Substance, during the random vehicle inspection Spice was discovered on the applicant’s person and in the vehicle. Investigation revealed a person search was conducted and roaches were found in the applicant’s left cargo pocket and packages found in the applicant’s right cargo pocket. The applicant admitted to smoking spice. FG Article 15, dated 21 June 2011, for failing to obey a lawful general regulation, to wit: paragraph 4-2(p)(1), Army Regulation 600-85, dated 2 December 2009, by wrongfully possessing Spice (4 May 2011). The punishment consisted of a reduction to E-2; forfeiture of $822 pay per month for two months; and, extra duty and restriction for 45 days. Report of Medical History, dated 21 September 2011, the applicant reported Anxiety; Migraines from Stress; and, depression because of Article 15. The examining medical physician noted in the comments section: Loss of Consciousness. Report of Mental Status Evaluation, dated 27 October 2011, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible, could understand the difference between right and wrong, and could participate in the proceedings. The applicant was screened for Post-Traumatic Stress Disorder and mild Traumatic Brain Injury, with negative results. There was no diagnosis provided. Two Developmental Counseling Forms, for possession of spice and commander’s bar to reenlistment review, determining for the bar to reenlistment to remain in effect. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; two self-authored statements; revocation of security clearance rebuttal; two letters of support (security clearance); FG Article 15; two Development Counseling Forms; Preparation Counseling Checklist; Obituary C.D.; self-authored essay regarding C.D. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends no charges or convictions of any criminal offenses, attending full-time school, maintaining full-time employment, and being an upstanding citizen. 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 prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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-3 applies to a 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. 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 14, paragraph 14-12c, 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 (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the 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 event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends other Soldiers with similar offenses were not discharged. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The applicant contends the command should have considered a rehabilitative transfer. Army Regulation 635-200, at the time, paragraph 1-16c, entitled rehabilitation, states rehabilitative measures are required prior to initiating separation proceedings for entry-level performance and conduct (chapter 11), unsatisfactory performance (chapter 13), or minor disciplinary infractions/patterns of misconduct (chapter 14). There was no rehabilitative transfer or reassignment requirements for separation for commission of a serious offense, chapter 14, paragraph 14-12c. Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. The applicant contends not being afforded the opportunity to seek counsel. The AMHRR reflects the applicant was given the opportunity to seek counsel, but there is no record the applicant waived or consulted with legal counsel. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service. The third-party statements provided with the application speak highly of the applicant and recognize the applicant’s good service. The applicant contends there has not been any charges or convictions of any criminal offenses, attending full-time school, maintaining full-time employment, and being an upstanding citizen. 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? No. The Board’s Medical Advisor, a voting member, reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a 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? No. Despite the Board’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant had a condition or experience that could outweigh the basis for applicant’s separation – unlawful possession of spice. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention; however, the applicant’s record does not provide sufficient evidence to warrant a change to the narrative reason. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board recognizes and appreciates the applicant’s willingness to serve and considered this contention during board proceedings along with the totality of the applicant’s service record. In this case, the Board determined that the applicant’s discharge is proper and equitable. (3) The applicant contends other Soldiers with similar offenses were not discharged. 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 the applicant’s discharge is appropriate. (4) The applicant contends the command should have considered a rehabilitative transfer. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with drug use, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant possession and use of MDMA is not an acceptable response to dealing with family and life issues, thus the applicant was properly and equitably discharged. (5) The applicant contends not being afforded the opportunity to seek counsel. The Board considered this contention during proceedings and determined there is no evidence in the applicant’s records to support the applicant was not afforded the opportunity to seek counsel. (6) The applicant contends good service. The Board recognizes and appreciates the applicant’s willingness to serve and considered this contention during board proceedings along with the totality of the applicant’s service record. (7) The applicant contends no charges or convictions of any criminal offenses, attending full-time school, maintaining full-time employment, and being an upstanding citizen. 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 determined the applicant’s discharge is appropriate. 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, the applicant does not have a BH diagnoses that could have excused or mitigated the offenses of wrongfully possessing Spice. 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 AR20210002981 1