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, applicant enlisted in the Army on 31 July 2003, and was discharged from the Army Reserves on 22 April 2009. Applicant's reserve obligation term date was 22 September 2010. Applicant's discharge was characterized as general (under honorable conditions). The separation was due to drug use, specifically, marijuana. It was a difficult year for applicant in 2009; applicant was struggling with serving applicant's country to the best of applicant's ability and also facing losing parental rights over applicant's son to the state of North Dakota. The applicant's son who was in the custody of their mother while applicant was away on drill had been removed by child services and was placed in foster care. During this time, applicant was struggling to find a stable home, work and continue with mandatory drills. Applicant was also struggling with untreated mental health issues (depression/anxiety). In order to combat thoughts of self-harm chose to use marijuana as a means of self-medication. Applicant understands these actions were not in compliance with the rules set forth by the Army Reserves, but applicant would like the opportunity to have the characterization of applicant's discharge upgraded. Applicant served six years and only faced these issues in applicant's last year of service, which happened during a time period applicant was under extreme stress. The character of the discharge was inequitable because it did not take into account the faithful years of service to applicant's country. Applicant was discharged after a single offense of marijuana use. Additionally, although policies regarding marijuana use have not been changed at the federal level, as the Army modernizes the standard to join and reasons for discharging Soldiers, it has to consider the mental health care and the use of marijuana to control depression and anxiety. At the time of applicant's discharge, applicant was experiencing significant family problems which affected applicant's ability to serve. Applicant was traveling back and forth to North Dakota to visit their son in foster care and was working on getting a stable home for applicant's son. Applicant was facing the loss of parental rights because applicant did not have a home. Applicant would appreciate the opportunity to upgrade the characterization of applicant's discharge to honorable. Although applicant's efforts in obtaining custody of their son failed, applicant is lucky enough to be able to keep in touch with their son and the adopted family. Applicant has been able to turn applicant's life around since the discharge. Applicant has been gainfully employed by the Commonwealth of Massachusetts for the past five years, is a provider for applicant's wife and two kids, and now hopes to purchase a home to provide a better life for applicant's children. In a records review conducted on 16 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 this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Use of Illegal Drugs / AR 135-178, Chapter 12 / NA / NA / General (Under Honorable Conditions) b. Date of Discharge: 25 January 2010 c. Separation Facts: The AMHRR is void of case separation file, however the applicant provided partial records. (1) Date of Notification of Intent to Separate: 5 January 2009 (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 22 April 2009 / General (Under Honorable Conditions) / The execution of the approved separation was suspended for 12 months. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 September 2002 / 6 years b. Age at Enlistment / Education / GT Score: 17 / HS Letter / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D10, Chemical Operations Specialist / 7 years, 4 months, 2 days d. Prior Service / Characterizations: IADT, 31 July 2003 - 17 December 2003 / HD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Developmental Counseling Form, dated 10 January 2009, reflects the applicant was counseled for a positive urine sample provided on 2 November 2008, which tested positive for THC (Marijuana). i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act) Form, dated 30 March 2018, reflects the applicant showed symptoms of panic attack, which include chest pain, shortness of breath, tunnel vision, severe anxiety and depression. Applicant also has attention deficit disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Certificate of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act) Form; DD Form 214; separation documents; United State Army Chemical School Diploma; United State Army Chemical School Certificate; 2 emails. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states having turned applicant's life around since being discharged. Applicant has been employed by the Commonwealth of Massachusetts for the past five years, and is a provider for applicant's wife and two kids. Applicant hopes to purchase a home in order to provide a better life for applicant's children. 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), dated 25 September 2019, 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 135-178 prescribes the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization 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 (2) Paragraph 2-9b, prescribes, if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. (3) Chapter 11 (previously Chapter 12), 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (4) Paragraph 11-1d (previously Chapter 12), prescribes illegal drug use is serious misconduct. Discharge action normally will be based upon commission of a serious offense. However, relevant facts may mitigate the nature of the offense. Therefore, a single drug offense may be combined with one or more disciplinary infractions or incidents or other misconduct and processed for discharge. (5) Paragraph 11-8 (previously Chapter 12), states an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be 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 AMHRR is void of the specific facts and circumstances concerning the events, however the applicant provided the separation authority decision memo which reflects the applicant was separated for use of illegal drugs which led to the discharge from the Army Reserve. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. 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 struggling with untreated mental health issues (depression/anxiety). The applicant's AMHRR contains no documentation of mental health diagnosis. The applicant submitted a Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act) Form, reflects the applicant showed symptoms of panic attack, which include chest pain, shortness of breath, tunnel vision, severe anxiety and depression. Applicant also has attention deficit disorder. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 DoD and VA medical records, and applicant's evidence, and found the applicant has depression/anxiety that could mitigate the illegal use of drugs that was the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor, after applying liberal consideration found the applicant's assertion of depression/anxiety during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor, after applying liberal consideration opined applicant's service related depression/anxiety does not mitigate the applicant's illegal drug use because there is no evidence of BH documentation to support the applicant's asserted diagnosis. (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 any of the applicant's medical conditions completely outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues. There is no evidence in the official records nor provided by the applicant that such assistance was pursued. Therefore, the Board determined that this contention does not affect applicant's discharge. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention during its deliberations and concluded that the applicant's medical conditions (depression/anxiety) did not outweigh the illegal drug use that was the applicant's basis for separation. (3) The applicant contends struggling with untreated mental health issues (depression/anxiety). The Board considered this contention and concluded that the applicant's medical conditions (depression/anxiety) do not outweigh the illegal drug use that was the applicant's basis for separation. (4) The applicant contends good service. The Board determined the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. (5) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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's service assertion of untreated mental health issues (depression/anxiety) did not excuse or mitigate the 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 AR20210003195 1