1. Applicant’s Name: a. Application Date: 22 August 2020 b. Date Received: 8 September 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests a narrative reason change. b. The applicant seeks relief contending, in effect, they were young and made poor choices 13 years ago that led to their separation, this has been a weight on their shoulders and choices made then, do not define who they are today. c. Board Type and Decision: In a records review conducted on 4 October 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, para 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 2 August 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 July 2007 (2) Basis for Separation: Wrongful use of a controlled schedule II substance (cocaine) on or about 26 March and 17 April 2007 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 17 July 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 July 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 November 2005 / 4 years b. Age at Enlistment / Education / GT Score: 17 / High School Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-3 / 74D1O Chemical OPS SP / 1 year, 2 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 19 November 2005, at the age of 17 and with parental consent, the applicant enlisted in the United States Army for a period of 4 years. (2) Eight Developmental Counseling Forms, between 17 November 2006 and 5 February 2007, for: * wrong uniform head gear in PT formation * late to formation * monthly counseling (November, January, and February) * uniform unreadiness * vehicle accident and directed defensive driving course * AER loan to help with vehicle accident (3) A Developmental Counseling Form, dated 14 February 2007, provides the applicant was underage drinking in violation of Article 92, UCMJ, and was directed to self-refer to Army Substance Abuse Program (ASAP) no later than 23 February 2007. There is no evidence in the AMHRR regarding a follow up. (4) Specimen Custody Document – Drug Testing, provides on 26 March 2007, the applicant tested positive for cocaine during a unit inspection. (5) On 17 April 2007, the applicant accepted nonjudicial punishment (NJP) for wrongful use of cocaine, in violation of Article 112a, UCMJ. They were reduced to E-1, forfeiture of $650 pay per month for 2 months, and 45 days of extra duty and restriction. (6) Specimen Custody Document – Drug Testing, provides 16 April 2007, the applicant tested positive for cocaine during a unit inspection. (7) Two Report to Suspend Favorable Personnel Actions (FLAG), reflects the applicant was flagged for an adverse action (AA) on 3 April 2007 and for a field initiated elimination (BA) on 27 April 2007. (8) Three Developmental Counseling Forms, between 4 and 24 April and 7 May 2007, for alcohol and/or other drug rehabilitation failure. (9) Five Developmental Counseling Forms, between 4-14 May 2007, for: * reporting late to formation * malingering * indebtedness * failure to obey * extra duty (10) On 18 June 2007, a memorandum from the Chief, Substance Abuse Services, Fort Hood, TX, provides an overview of the extensive treatment opportunities the applicant was offered and scheduled for, however, the applicant was a “No Show” and demonstrated despite the opportunities and agreed upon treatment objectives, they were unwilling to commit and it appeared they either could not or would not discontinue their excessive substance abuse; it was recommended the command consider to initiate other appropriate administrative action. On the same day the immediate commander declared the applicant a rehabilitation failure. (11) On 10 July 2007, the applicant accepted NJP for wrongful use of cocaine, in violation of Article 112a, UCMJ. They were imposed a forfeiture of $650 pay per month for 2 months, and 45 days of extra duty and restriction. (12) On 17 July 2007, the immediate commander notified the applicant of their intent to separate them under the provisions of AR635-200, Chapter 14-12c, misconduct-abuse of illegal drugs, recommending a characterization of general (under honorable conditions), specifically for wrongful use of cocaine on two occasions. (a) On 17 July 2007, the applicant acknowledged the commander’s intent to separate and consulted with counsel; they signed, and acknowledged their separation, their available rights and understanding on being separated with a general (under honorable conditions) characterization of service and how it could affect their entitlements. Additionally, they selected not to submit a statement on their behalf. (b) The commander submitted their recommendation for separation and the chain of command concurred with the action and characterization of service of general (under honorable conditions). (c) On 2 August 2007, the appropriate approval authority approved the separation and directed the applicant be discharged with a general (under honorable conditions) characterization of service. (13) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged accordingly on 2 August 2007, with 1 year, 6 months, and 14 days of net active service this period. The applicant has not completed the first full term of service. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge). 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), 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 635-200 provides the basic authority for the separation of enlisted personnel. (1) 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. (2) 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. (3) Chapter?14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Paragraph?14-12c (2), misconduct (drug abuse), stated, however; 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. 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. 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. Paragraph 14-12c, states 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. (4) 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, paragraph 12c (2), 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 waiverable and nonwaiverable 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 waiverable. Eligibility: Ineligible unless a waiver is granted. (3) 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. g. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) dated 28?December 2012, provided a comprehensive alcohol and drug abuse prevention and control policies, procedures, and responsibilities for Soldiers for ASAP services. The ASAP is a command program that emphasizes readiness and personal responsibility. The ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier’s chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army values and the standards of performance, discipline, and readiness necessary to accomplish the Army’s mission. (1) Unit commanders must intervene early and refer all Soldiers suspected or identified as alcohol and/or drug abusers to the ASAP. The unit commander should recommend enrollment based on the Soldier’s potential for continued military service in terms of professional skills, behavior, and potential for advancement. (2) ASAP participation is mandatory for all Soldiers who are command referred. Failure to attend a mandatory counseling session may constitute a violation of Article?86 (Absence Without Leave) of the UCMJ. (3) Alcohol and/or other drug abusers, and in some cases dependent alcohol users, may be enrolled in the ASAP when such enrollment is clinically recommended. Soldiers who fail to participate adequately in, or to respond successfully to, rehabilitation will be processed for administrative separation and not be provided another opportunity for rehabilitation except under the most extraordinary circumstances, as determined by the Clinical Director in consultation with the unit commander. (4) All Soldiers who are identified as drug abusers, without exception, will be referred to the ASAP counseling center for screening; be considered for disciplinary action under the UCMJ, as appropriate; and be processed for administrative separation in accordance with Army Regulation?635-200. h. 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 14-12c (2), misconduct (drug abuse). i. Manual for Courts-Martial, United States (2008 Edition) stated, military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the Armed Forces. Article 112a (Wrongful Use, Possession, etc., of Controlled Substances) stated in subparagraph?e (Maximum Punishment) the wrongful use, possession, manufacture, or introduction of controlled substance, to include cocaine the maximum punishment consists of a dishonorable discharge, forfeiture of all pay and allowances, and confinement 5?years. 8. SUMMARY OF FACT(S): Standard of Review. The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests a narrative reason change. The DD Form 214 provides the applicant’s narrative reason for separation is misconduct (drug abuse). b. A review of AMHRR records provide the applicant enlisted with parental consent at the age 17 years old. They received a multitude of counseling’s for various acts of minor infractions to include but not limited to being late to formation, malingering, vehicle accident, indebtedness, and failure to obey. (1) On 14 February 2007, 1 year and 25 days into their enlistment, and while under the legal drinking age, they received a counseling for underage drinking and the commander directed them to self-refer to ASAP by 23 February 2007; however, there is no indication whether or not the applicant self-referred. (2) In March and April 2007, the applicant tested positive for cocaine. c. On 18 June 2007, a memorandum from the Chief, Substance Abuse Services, Fort Hood, TX, provides an overview of the extensive treatment opportunities the applicant was offered and scheduled for; however, the applicant was a “No Show” and demonstrated despite the opportunities and agreed upon treatment objectives, they were unwilling to commit, and it appeared they either could not or would not discontinue their excessive substance abuse. It was recommended the command consider initiating other appropriate administrative action. On the same day the immediate commander declared the applicant a rehabilitation failure. (1) AR 600-85 provides a unit commander, in consultation with the ASAP clinical staff, determines rehabilitation failure (further rehabilitation efforts are not practical) must process the Soldier for administrative separation. (2) On 17 July 2007, the commander-initiated action to separate the applicant; the chain of command concurred, and the appropriate authority approved the separation with a general (under honorable conditions) characterization of service. (3) The available evidence provides the applicant enlisted at the age of 17 years old and was discharged at the age 18 years, 9 months, and 26 days. The applicant did not provide any specific post service accomplishments in support of their petition. The applicant was discharged having completed 1 year, 6 months, and 14 days of their 4-year enlistment obligation. d. AR 635-200, Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable condition 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. e. The evidence shows the applicant received a general discharge rather than a discharge under other than honorable conditions, which is normally considered appropriate. f. Published DoD guidance indicates that the guidance is not intended to interfere or impede on the Board’s statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant’s petition, available records and/or submitted documents in support of the petition. 9. BOARD DISCUSSION AND DETERMINATION: a. KURTA FACTORS: 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 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? N/A b. Response to Contention(s): The applicant did not make any contentions or provide any evidence to support that the discharge was improper or inequitable. The Board reviewed all available evidence and determined that no relief was warranted at this time. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion that the applicant does not have a BH condition that mitigates the applicant’s misconduct for drug abuse. 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 AR20210005124 1