1. Applicant's Name: a. Application Date: 31 July 2020 b. Date Received: 1 October 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 an upgrade to honorable; no additional details were provided. b. Board Type and Decision: In a records review conducted on 17 November 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's quality of service, to include combat service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 10 September 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 August 2019 (2) Basis for Separation: wrongful use of marijuana (3) Recommended Characterization: Honorable (4) Legal Consultation Date: The applicant declined to consult with a military attorney. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 23 August 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 March 2017 / 5 years, 32 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25B10 (IT Specialist) / 2 years, 5 months, and 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (27 December 2017 - 23 June 2018) f. Awards and Decorations: AAM, NDSM, GWOTEM, GWONTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 28 February 2017, the applicant enlisted in the United States Army Reserve's Delayed Entry Program; on 14 March 2017, they enlisted in the Regular Army for 5 years and 32 weeks as an E-1. (2) The Enlisted Record Brief provides the applicant promoted to E-4 on 1 October 2018 and awarded an AAM for a 6-month tour in Kuwait, in support of Operation Enduring Freedom. (3) An Electronic Copy of DD Form 2624 provides the applicant's social security number as positive for THC in a inspection unit (IU) urinalysis collection on 7 May 2019 and reported on 10 June 2019. (4) On 20 June 2019, the applicant received two counseling forms from their squad leader for their positive urinalysis results and the intent to initiate separation proceedings. (a) On the counseling notifying them of their positive urinalysis results, the squad leader recommended them for a field grade Article 15; the record provides page 2 of 2 is missing which annotates if the applicant agreed or disagreed and whether they included a statement on their behalf. (b) On the counseling notifying the applicant of the intent to initiate separation proceedings, the applicant disagreed and wrote "results invalid" in the remarks section. (c) The same day, two Reports to Suspend Favorable Personnel Actions (FLAG) provides the applicant was flagged for two adverse actions, punishment phase for drug abuse (HA) and a field initiated involuntary separation (BA). (5) A Mental Status Evaluation Report dated 27 June 2019, from a Behavioral Health Provider at William Beaumont Army Medical Center (WBAMC) provides the applicant was screened with no follow-ups needed; the applicant was [at the time] enrolled in Substance Use Disorder Clinical Care (SUDCC). There was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels; they possess the mental sufficient capacity to participate intelligently in any proceedings deemed appropriate; they were cleared for their administrative separation according to Army Regulation 635-200, Chapter 14-12. (6) On 28 June 2019, a report of medical examination provides the applicant was cleared for separation with nothing found in their history or physical that required a referral; they were qualified for service with a profile [P-1, U-1, L-1, H-1, E-1, S-1] factor of "1". (7) On 18 July 2019, the applicant elected to decline legal consultation for the pending imposition of nonjudicial punishment under Article 15, UCMJ. (8) On 23 July 2019, the section chief (noncommissioned officer in charge (NCOIC)), SFC, of the Battalion's Information Management Office (IMO), submitted a character letter for the applicant's separation proceedings, stating the applicant worked directly with them for a two- week period to prepare for a brigade field exercise and displayed a strong willingness to learn new skills and contribute to the mission in as many ways as possible. The applicant directed and participated in training for the Soldiers, provided daily reports to S6 Officer in Charge (OIC) and NCOIC, in an effort to keep the battalion's communication systems up and running. They demonstrated their dedication throughout the exercise, advocating for the section's warfighting function while ensuring mission's needs, and was always striving for mission success. The applicant is a quality Soldier with a firm positive attitude who will continue to excel [then in the Army, if the applicant was allowed to continue their Army career]. (9) On 1 August 2019, the applicant accepted nonjudicial punishment (NJP) for wrongful use of marijuana, in violation of Article 112a, UCMJ. They were reduced to E-1, forfeiture of $840.00 pay, suspended, to be automatically remitted if not vacated on or before 1 February 2020; they received extra duty and restriction for 45 days and received an oral reprimand. (10) On 19 August 2019, the immediate commander notified the applicant of their intent to separate them under provisions of AR 635-200, Chapter 14-12c (2), Misconduct (Drug Abuse) for wrongful use of marijuana with a recommended characterization of service as Honorable. The same day, the battalion commander endorsed the separation action and recommended separation with a General (Under Honorable Conditions) characterization of service. (a) On 22 August 2019, the election of rights memo provides the applicant acknowledged their rights, elected not to submit a statement on their behalf and elected to waive consulting counsel. (b) On 23 August 2019, the appropriate approval authority approved the separation and directed the applicant be discharged with a General (Under Honorable Conditions) characterization of service. (11) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged accordingly on 10 September 2019, with 2 years, 6 months, and 11 days. 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); On 1 September 2020, a third-party statement from the battalion commander, LTC, states the applicant under their command and their service in the field of communications and tactical network information systems was an immense asset and resource to the Battalion. Even though the applicant's service ended prematurely from a one-time act, while their discharge decision was pending, the applicant devoted their time to educate, train, and build up their communications team's abilities to leave the Battalion in a better readiness posture for their upcoming deployment. LTC would characterize their service as Honorable for the applicant's "all in," mentality and drive to accomplish any task or mission given. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with this 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) An Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (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. 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. (5) 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 14-12c (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 November 2016, 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. 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. (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. 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. (2) 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. h. Manual for Courts-Martial, United States (2019 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 for 2 years. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests an upgrade to honorable. A review of the AMHRR records provides the applicant was promoted to E-4 and was awarded an AAM in support of OEF in Kuwait. Approximately 1 year, 1 month, and 16 days post-deployment the applicant tested positive for THC in a urinalysis resulting in NJP and the commander initiating involuntary separation under the provisions of Army Regulation 635-200, Chapter 14 for wrongful use of marijuana. The available evidence provides the applicant's immediate commander recommended they receive an honorable characterization of service, however, the intermediate authority recommended they received a general (Under Honorable Conditions). The applicant received a general (under honorable conditions, rather than an under other than honorable conditions, which is normally considered appropriate. (1) The applicant received a separation physical and a mental health status examination. They were cleared for separation, noting they were under pain management's care for their back, and they were [at the time] enrolled in SUDCC. (2) The record provides two-character letters which speak highly of the applicant naming them an "immense asset and resource" that demonstrated dedication with an "all in" and "unwaveringly positive attitude" towards mission success. (3) They completed 2 years, 5 months, and 27 days of their 5-year, 8-month enlistment contractual obligation. b. 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 conditions is normally appropriate for a Soldier discharge under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. c. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impeded 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. 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? N/A b. Response to Contention(s): The applicant did not make any contentions. c. The Board determined the discharge is inequitable based on the applicant's quality of service to include combat service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service based on the following reasons: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board found sufficient evidence of in-service mitigating factors (Quality, Combat) that does mitigate the applicant's wrongful use of marijuana. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210005828 1