1. Applicant's Name: a. Application Date: 5 November 2020 b. Date Received: 9 November 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, that the applicant was in a vehicle with a family member as well as a younger sibling. They were helping a cousin move to New Jersey to be with that cousin's dying mother. The cousin had luggage in the trunk containing marijuana without the knowledge of the applicant's and the applicant' sibling. All members of the car were arrested and charged. The applicant contends the applicant's unit did not wait until the trial to being the Chapter. Instead the First Sergeant forced the applicant out of the Army by pushing up separation appointments. The applicant wanted to complete SFL-TAP in person which the appointment would have been set in May, in which the First Sergeant and Commander denied, and forced the applicant to complete online. On about 17 October 2020 all charges on the applicant and the applicant's sibling were dropped and their records were ordered to be sealed and expunged. The applicant's sibling's chain of command decided to retain the sibling, but the applicant had been chaptered out with no benefits, no eligibility of temporary healthcare for children, and no chance for getting a government occupation. The applicant requests assistance. In a records review conducted on 22 June 2022, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service and the circumstances surrounding the discharge (court-ordered expungement dated the day after discharge due to the co-defendant accepting full responsibility). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 19 October 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 June 2020 (2) Basis for Separation: The applicant was informed of the following reason: for having wrongfully possessed 84 pounds of marijuana with intent to distribute and in wrongful possession of drug paraphernalia. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 25 June 2020 / The applicant requested consideration of her case by an administrative separation board. (5) Administrative Separation Board: On 13 July 2020 / The applicant was notified to appear before an administrative separation board IAW Army Regulation 15-6, paragraph 7-5, and Army Regulation 635-200 on 28 July 2020. (6) Separation Decision Date / Characterization: 28 September 2020 / The separation approving authority approved the findings and recommendations of the administrative separation board and directed the issuance of an Under Other Than Honorable Conditions. However, the administrative separation board proceedings, findings and recommendation are not in the available AMHRR. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 February 2019 / 3 years b. Age at Enlistment / Education / GT Score: 30 / BA Degree / 111 c. Highest Grade Achieved / MOS / Total Service: E-5 / 68E10, Dental Specialist / 3 years, 11 months, 19 days d. Prior Service / Characterizations: RA, 1 November 2016 to 31 January 2019 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM-3, AGCM, NDSM, GWOTSM, NOPDR, ASR g. Performance Ratings: 1 December 2018 to 24 May 2019, Qualified 25 May 2019 to 10 July 2020, Not Qualified h. Disciplinary Action(s) / Evidentiary Record: Affidavit for the Warrant of Arrest for the Applicant VS State of Arkansas, which makes reference to Possession with Purpose to Deliver Class B Felony and Possession of Drug Paraphernalia Class D Felony. Several negative counseling statements which make reference to acts of misconduct and duty performance; i.e., the applicant having violated the commander's leave policy by being outside of the designated 250-mile radius and purchasing or receiving a new personal firearms or ammunition. Court document dated 20 October 2020, submitted by the applicant from the Lonoke County, Arkansas Twenty-Third Judicial District indicating and order and adjudgement against the applicant be Nolle Proseoui based on the fact that a co-defendant took full responsibility for the charges. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 20 April 2020, which indicates the applicant was BH diagnosed with Anxiety Disorder, Unspecified; Insomnia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Lonoke County, Arkansas Twenty-Third Judicial District court document. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), 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 3-7c states 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. (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(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing 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 under paragraph 14- 12a or 14-12b as appropriate. e. 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-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. f. 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). 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 general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. Evidence in the AMHRR indicates separation action was initiated against the applicant for having wrongfully possessed 84 pounds of marijuana with intent to distribute and was in wrongful possession of drug paraphernalia. The applicant seeks relief contending, in effect, that the applicant was in a vehicle with a family member as well as a younger sibling. They were helping a cousin move to New Jersey to be with that cousin's dying mother. The cousin had luggage in the trunk containing marijuana without the knowledge of the applicant's and the applicant' sibling. All members of the car were arrested and charged. The applicant contends the applicant's unit did not wait until the trial to being the Chapter. Instead the First Sergeant forced the applicant out of the Army by pushing up separation appointments. The applicant wanted to complete SFL-TAP in person which the appointment would have been set in May, in which the First Sergeant and Commander denied, and forced the applicant to complete online. On 20 October 2020 all charges on the applicant and the applicant's sibling were dropped and their records were ordered to be sealed and expunged. The applicant's sibling's chain of command decided to retain the sibling, but the applicant had been chaptered out with no benefits, no eligibility of temporary healthcare for children, and no chance for getting a government occupation. The applicant requests assistance. The applicant's contentions were noted; evidence of records shows that separation was initiated against the applicant for having wrongfully possessed 84 pounds of marijuana with intent to distribute and was in wrongful possession of drug paraphernalia. It should be noted by violating the Army's policy not to possess or use illegal drugs, the applicant compromised the trust and confidence placed in a Soldier. The applicant, as a noncommissioned officer, had the duty to support and abide by the Army's drug policies. The applicant knowingly risked a military career and diminished the quality of service below that meriting an honorable discharge. It was noted by the court document submitted by the applicant from the Lonoke County, Arkansas Twenty-Third Judicial District dated 20 October 2020 directing for order and adjudgement to be Nolle Proseoui based on the fact that a co-defendant took full responsibility for the charges. However, it should also be noted; Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial. The applicant has expressed a desire to obtain better job opportunities and the benefits of the GI Bill. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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 the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Generalized Anxiety Disorder (GAD) Anxiety Disorder (AD), unspecified, and military sexual trauma (MST). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant's diagnoses of GAD and AD, unspecified as well as the experience of MST, all occurred 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 there are no mitigating BH conditions or experiences. While the applicant has been diagnosed with GAD, AD, unspecified and has reported a history of MST, none of these conditions/experiences mitigate the possession of 84 pounds of marijuana or drug paraphernalia given that neither these diagnoses do not affect one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): The applicant seeks relief contending on about 17 October 2020 all charges were dropped and their records were order to be sealed and expunged. The Board majority considered this contention and determined that relief was warranted. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service and the circumstances surrounding the discharge (court-ordered expungement dated the day after discharge due to the co-defendant accepting full responsibility). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's length and quality of service and the circumstances surrounding the discharge (court-ordered expungement dated the day after discharge due to the co-defendant accepting full responsibility). Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code. (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: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20210008462 1