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 honorable. The applicant requests a reentry eligibility (RE) code change and a separation code (SPD) change. The applicant seeks relief contending, in effect, according to AR 635-200, chapter 9, she should have received an RE-2, instead of an RE-4. Based on the chapter, the SPD code is wrong. The applicant states, an Inspector General told her at the beginning of the process, the regulations were broken and possibly the personal opinion of the commander, because the applicant was diagnosed as transgender. In a records review conducted on 11 February 2022, and by a 5 - 0 vote, the Board determined the reentry eligibility (RE) code is inequitable based on the applicant's Gender Identity Disorder and voted to change it to RE-3. 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: Drug Rehabilitation Failure / AR 635- 200 / Chapter 9 / JPC / RE-4 / Honorable b. Date of Discharge: 2 July 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 May 2018 (2) Basis for Separation: The applicant was informed of the following reasons: For failure to complete the Army Substance Abuse Program (ASAP). (3) Recommended Characterization: Honorable (4) Legal Consultation Date: 24 May 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: undated / Honorable 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 September 2016 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Culinary Specialist / 1 year, 9 months, 6 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: Developmental Counseling Form, dated 13 April 2018, reflects the applicant was counseled for admitting to her command she was using cocaine. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 22 May 2018, 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: Cocaine use disorder, mild. It was also noted: The applicant was a Self-Referral to the Fort Hood Substance Use Disorder Clinical Care (SUDCC) on 8 April 2018 due to admitting to her command she was using cocaine. Following a bio-psychosocial assessment, it was determined the applicant met criteria for diagnosis of Cocaine Use Disorder Mild. On 13 April 2018, the applicant was enrolled into SUDCC for outpatient treatment with primary goal of treatment through consultation with Clinical Consultant, group sessions, and participation in Alcohol and Drug Prevention Training (ADAPT). On 16 May the applicant tested positive for alcohol. In accordance with Army Regulation 600-85, "Soldiers who fail to participate adequately in or to respond successfully to rehabilitation will be processed for administrative separation". The applicant is considered a rehabilitation failure and per regulatory guidance processed for separation under the provisions of Chapter 9, AR 635-200. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; DD Form 2870; separation documents; ERB; DD Form 268; DA Form 3822; DA Form 4856; Army Reenlistment Codes document. 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) Chapter 9 outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to the Army Substance Abuse Program (ASAP) for alcohol or drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. (4) Paragraph 9-4, stipulates the service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. An honorable discharge is mandated in any case in which the Government initially introduces into the final discharge process limited use evidence as defined by AR 600-85, paragraph 6-4. 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 "JPC" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 9, for drug rehabilitation failure. 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-2 Applies to: Person separated prior to the effective date of this regulation. These codes will not be used. Eligibility: Qualified for enlistment, provided reason and authority does not preclude enlistment or require a waiver. Applicant may not enlist until 93 days after separation if otherwise qualified. RE-4 Applies to: 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 a RE code change and a SPD code change. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record indicates on 16 May 2018, the applicant tested positive for alcohol, while in the ADAPT program. Based on this, she was declared a rehabilitation failure. The applicant contends the SPD code needs to be changed. The applicant was separated under the provisions of Chapter 9, AR 635-200 with an honorable discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "drug rehabilitation failure," and the separation code is "JPC." Army Regulation 635-8, Separation Processing and Documents, governs 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 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 applicant contends the IG stated regulations were broken and the commander's personal opinion, may have been discriminating against the applicant because of him being diagnosed as transgender. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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. 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? N/A. Applicant already holds an Honorable discharge, so there is no medical mitigation required for a characterization upgrade. (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? N/A b. Response to Contentions: (1) The applicant contends the SPD code should be changed. The Board considered this contention and determined the weight of the evidence supported applicant's SPD code of JPC, drug rehabilitation failure. (2) The applicant contends the IG stated regulations were broken, plus personal opinion of commander and the applicant may have been discriminated against because of being diagnosed as transgender. Contrary to the applicant's contention, the Board concluded the evidence did not support any known error with the IG regulations and the command did not act in an arbitrary or capricious manner during applicant's separation process. (3) The applicant desires to rejoin the Military Service. The Board considered this contention and determined an RE code change to RE-3, is appropriate and equitable to allow applicant to re-enlist if the applicant can obtain a waiver. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. c. The Board determined the RE code is inequitable based on the reason stated above. d. Rationale for Decision: (1) For the reasons stated above, the Board voted to exclusively change the applicant's RE code to RE-3, but did not vote to change the applicant's current discharge characterization because it was already Honorable. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code as the reason the applicant was discharged was both proper and equitable. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. Change RE Code to: RE-3 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 AR20210003182 3