1. Applicant’s Name: a. Application Date: 17 July 2020 b. Date Received: 28 July 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 uncharacterized. The applicant requests an upgrade to honorable or general (under honorable conditions) along with a narrative reason, separation program designator (SPD) and reentry (RE) code change. The applicant seeks relief contending, in effect, the applicant was not absent without leave (AWOL) and did not have a positive urinalysis test. The applicant received nonjudicial punishment and was not supposed to be discharged. The applicant received a bad conduct discharge, but the applicant’s service was uncharacterized. The applicant’s application refers to the applicant being a whistleblower but does not provide any matters concerning whistle Blower reprisal. b. Board Type and Decision: In a records review conducted on 12 May 2023, 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 / Chapter 14-12c (2) / JKK / RE-4 / Uncharacterized b. Date of Discharge: 12 February 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: On or about 10 January 2008, the applicant made a sworn statement admitting to using marijuana, Vicodin, and Zanax. The applicant was also absent without leave from 5 January 2008 to 7 January 2008. (3) Recommended Characterization: Uncharacterized (4) Legal Consultation Date: On 25 January 2008, the applicant declined the opportunity to consult with counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 February 2008 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 October 2007 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 23 / GED / 95 c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 4 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DA Form 2823 (Sworn Statement), dated 8 January 2008, reflects the applicant admitted to smoking marijuana multiple times and further admitted to taking Vicodin and Zanax. DA Form 2823 (Sworn Statement), dated 10 January 2008, reflects the applicant admitted to smoking marijuana on or about 20 December and 30 December while on leave. The applicant further admitted to taking Vicodin and Zanax. FG Article 15, dated 15 January 2008, reflects the applicant wrongfully used marijuana, Vicodin, and Zanax between on or about 15 December 2007 and 3 January 2008, and the applicant was absent without authority from 5 January 2008 until 7 January 2008. The punishment consisted of forfeiture of $622 pay and restriction and extra duty for 45 days. DA Forms 4187 (Personnel Action) verified the applicant’s duty status changed from Present for Duty to AWOL effective 5 January 2008; and from AWOL to Present for duty effective 7 January 2008. i. Lost Time / Mode of Return: AWOL X 3 days (5 January 2008 – 7 January 2008) / Returned j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, DD Form 293, personal notes/statements, photo, DD Form 93, various documents from AMHRR. 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) 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) Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. Unless the DCS, G-1, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. A Soldier is in an entry-level status (ELS) if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. (5) 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. (6) 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. (7) 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. 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 “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-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. 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. 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 an upgrade to honorable or general (under honorable conditions) along with a narrative reason, SPD code, and RE code change. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant requests the narrative reason for the discharge be changed. The applicant’s DD Form 214 shows the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with an uncharacterized. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Drug Abuse),” and the separation code is “JKK.” Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 28, Narrative Reason for Separation as “Misconduct (Drug Abuse).” The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c. Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason for Separation as Misconduct (Serious Offense). The applicant requests the SPD and RE codes be changed. Separation 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 SPD code specified by Army Regulations for a discharge under Chapter 14-12c(2), is “JKK.” Army Regulation 635-5, Separation Documents, governs the preparation of the DD Form 214 and dictates the entry of the 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 SPD code to be entered under this regulation. 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. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant’s DD Form 214, block 25, “AR 635-200, PARA 14-12C (2).” The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, Paragraph 14-12c due to “Misconduct (Serious Offense).” Based on the applicant’s AMHRR, it appears someone in the discharge process erroneously entered on the applicant’s DD Form 214, block 26, Separation Code as “JKK.” Enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Paragraph 14-12C, for Misconduct (Serious Offense) will be assigned a Separation Code of “JKQ,” per Army Regulation 635-5-1. The applicant contends, in effect, the applicant was not AWOL. The applicant AMHRR contains two DA Forms 4187 which verified the applicant’s duty status changed from Present for Duty to AWOL effective 5 January 2008; and from AWOL to Present for duty effective 7 January 2008. The applicant contends, in effect, the applicant did not have a positive urinalysis test. The applicant’s separation packet does not refer to a positive urinalysis test, but to the applicant’s admission of using illegal drugs. The AMHRR also contains a sworn statement from the applicant admitting to using illegal drugs. The applicant contends, in effect, the applicant received nonjudicial punishment and was not supposed to be discharged. The applicant’s separation file reflects on an unspecified date, the applicant acknowledged receipt of notification for separation under the provisions of AR 636- 200, Chapter 14-12c, Commission of a Serious Offense. The applicant states there was a bad conduct discharge received, but the applicant’s service was uncharacterized. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. The applicant was in an ELS at the time of the separation. The applicant’s application refers to the applicant being a whistleblower but does not provide any matters concerning whistle Blower reprisal. 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, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses: Schizophrenia and Unspecified Psychosis. (2) Did the condition exist or experience occur during military service? No. After a thorough review of in-service records and post-service records, in terms of symptom presentation and diagnosis, the conditions were not present in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that in-service medical records do not support symptoms were present at the time of service. This is further supported by the fact the diagnosis was more than a decade after discharge; if symptoms existed in-service, the full disease would have presented at the most by 2010. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant was not AWOL. The Board considered this contention non-persuasive during its deliberations after review of the evidence, to include the applicant’s lost time. The Board determined the assertion alone did not outweigh the applicant’s basis for separation – AWOL and admission of wrongful use of marijuana, Vicodin, and Zanax. (2) The applicant did not have a positive urinalysis test. The Board considered this contention non-persuasive during its deliberations after review of the evidence, to include the applicant’s admission. The Board determined the assertion alone did not outweigh the applicant’s basis for separation – AWOL and admission of wrongful use of marijuana, Vicodin, and Zanax. (3) The applicant contends the applicant received nonjudicial punishment and was not supposed to be discharged. The Board considered this contention and determined there was insufficient evidence of any arbitrary or capricious action taken by the Command. 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 determined there was insufficient evidence of an inequity or impropriety, or any arbitrary or capricious action taken by the Command such that outweighed the basis for separation – AWOL and admission of wrongful use of marijuana, Vicodin, and Zanax. The Board determined that the applicant’s service was not long enough to be properly assessed. A general discharge (GD) under honorable conditions is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The uncharacterized description of service accurately reflects the applicant’s overall record of service. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service. It means the Soldier has not been in the Army long enough for a character of service to be rated as honorable or otherwise. 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 AR20210007072 1