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, he believes he was not given a fair discharge. The applicant cooperated with the extra duty and training he was given. The applicant was having sleep issues and he was unable to concentrate. One of the tests used against the applicant was labeled wrong, but it was still used. In a records review conducted on 17 February 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, Paragraph 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 10 February 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 31 January 2012 (2) Basis for Separation: Under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense, the applicant was informed of the following reasons: The applicant did, on two occasions, between 16 October and 15 November 2011 and between 10 October and 9 November 2011, wrongfully use d-amphetamine. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 2 February 2012, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 3 February 2012 / General (Under Honorable Conditions) / The separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 June 2008 / 4 years b. Age at Enlistment / Education / GT Score: 23 / GED / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91E10, Machinist / 3 years, 7 months, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (1 December 2008 - 12 December 2009) f. Awards and Decorations: ACM-CS, ARCOM, AAM, MUC, VUA, AGCM, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 29 November 2011, reflects the applicant tested positive for DAMP 229 during an Inspection Random (IR) urinalysis testing conducted on 9 November 2011. Electronic copy of the DD Form 2624, dated 5 December 2011, reflects the applicant tested positive for DAMP 668 during an Inspection Unit (IU) urinalysis testing conducted on 15 November 2011. CID Report of Investigation - Initial Final, dated 19 December 2011, reflects the applicant was under investigation for wrongful use of a dangerous drug (reported 16 December 2011). The trial counsel opined probable cause existed to believe the applicant committed the offense of Wrongful Use of a Controlled Substance. A search of their records maintained by the Centralized Operating Police Suite (COPS), National Crime Information Center, and U.S. Army Crime Records Center revealed on 14 December 2011, the applicant was charged by the Fort Campbell Military Police for disorderly conduct and wrongful damage of government property. FG Article 15, dated 17 January 2012, for, on two occasions, wrongfully using d-amphetamine (between 16 October and 15 November 2011; between 10 October and 9 November 2011). The punishment consisted of reduction to E-3; forfeiture of $700 (suspended); and, extra duty and restriction for 15 days. The applicant was provided the opportunity to speak with an attorney prior to imposition of the Article 15, but waived his rights. Report of Mental Status Evaluation, dated 20 January 2012, reflects the applicant was cleared for separation under AR 635-200, Chapter 14-12. The applicant could understand and participate in administrative proceedings; appreciate the difference between right and wrong; and met retention requirements. The applicant was screened for mild TBI and PTSD with negative results. Three Developmental Counseling Forms, for misconduct relating to positive urinalysis tests. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 11 January 2012, the applicant indicated he was diagnosed with insomnia; he had been counseled by ASAP, AA, ABH, and Military One Source, not much help; and he was feeling depressed, but never tested. The examining medical physician noted in the comments section: ABH has seen; no depression; strictly denies suicidal/homicidal ideations; and, feels depressed. Report of Medical Examination, dated 11 January 2012, the examining medical physician noted in the summary of defects and diagnoses section: Depression Situational. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214. 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 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. (7) 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. (8) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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). 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 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. Based on the applicant's AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, "AR 635-200, PARA 14-12C (2)"; block 26, "JKK"; and block 28, "MISCONDUCT (DRUG ABUSE)." The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c, Misconduct (Serious Offense). Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason for Separation as Misconduct (Serious Offense) and a SPD code of JKQ. The applicant contends he was having sleep issues and was unable to concentrate, which affected his behavior and led to his separation. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The applicant underwent a medical examination on 11 January 2012, which he revealed he felt depressed. The examining medical physician commented: Depression, Situational and qualified the applicant for service. The applicant underwent a mental status evaluation (MSE) on 20 January 2012, which reflects the applicant was cleared for separation under AR 635-200, Chapter 14-12; he could understand and participate in administrative proceedings; appreciate the difference between right and wrong; and met retention requirements. There was no diagnosis. The medical examination and MSE were considered by the separation authority. The applicant contends he was discharged unfairly and one of the urinalysis used against him was labeled wrong, but it was still used. The AMHRR reflects the applicant was afforded the opportunity to consult with legal counsel during the Article 15 proceedings, which included both charges of wrongful drug use. The applicant waived his right to speak to an attorney and he accepted the Article 15. The applicant had the opportunity to consult with legal counsel during the separation proceedings, but waived his right to consult with an attorney. 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? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records and found the applicant was diagnosed in service with an Adjustment Disorder, Major Depressive Disorder, Chronic Insomnia and Alcohol Dependence that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed in service with an Adjustment Disorder, Major Depressive Disorder, Chronic Insomnia and Alcohol Dependence. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and found the weight of the evidence did not support an association between applicant's drug use and applicant's Adjustment Disorder, Major Depressive Disorder, Chronic Insomnia and Alcohol Dependence, and therefore opined none of the applicant's conditions mitigated the wrongful drug use that was the basis for applicant's separation. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's d-amphetamine use is not outweighed by applicant's Adjustment Disorder, Major Depressive Disorder, Chronic Insomnia and Alcohol Dependence for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends having sleep issues and unable to concentrate, which affected behavior and led to the separation. The Board reviewed and liberally considered the applicant's DOD and VA health records and found the applicant's Adjustment Disorder, Major Depressive Disorder, and Alcohol Dependence as well as chronic insomnia, which began eight months to preoccupations with family problems and the applicant was prescribed sleep medication to improve rest and concentration, all of which does not mitigate, let alone outweigh applicant's d-amphetamine use which is the basis of applicant's separation. (2) The applicant contends the discharge was unfair and one of the urinalysis used was labeled wrong, but was still used. The Board considered this contention during deliberation and determined the evidence of record supports the presumption of government regularity throughout applicant's discharge process. c. The Board determined 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, the applicant's BH conditions did not outweigh the offenses of drug abuse, which were the applicant's basis of separation. 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, and 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 AR20210003140 1