1. Applicant’s Name: a. Application Date: 3 July 2020 b. Date Received: 4 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 an upgrade to honorable and a narrative reason change. b. The applicant states, in effect they used drugs while enlisted due to stress and since being discharged they have not smoked marijuana and have been a productive member of society and a parent to their child. They suffered from an undiagnosed/untreated mental health condition and was discharged for reasons related to their condition. Since being discharged, they have been working to provide for their family; they had their first child during the time they were separated. Finding the right career path has been difficult due to the status of their discharge, their goal is to obtain their commercial driver’s license and start a career as an owner and operator. c. Board Type and Decision: In a records review conducted on 29 November 2023, and by a 4-1 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. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200 14-12c (2) / JKK / RE-3 / General (Under Honorable Conditions). b. Date of Discharge: 30 November 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 October 2018 (2) Basis for Separation: Wrongful use of marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 October 2018 (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 22 October 2018 / General (Under Honorable Conditions). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 August 2016 / 4 years b. Age at Enlistment / Education / GT Score: 18 / Hugh School / 97 c. Highest Grade Achieved / MOS / Total Service: E-3 (PFC) / 56M10 Religious Affairs Specialist / 2 years, 3 months, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: South Korea / None f. Awards and Decorations: NDSM, GWTSM, KDSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: (1) An Enlistment/ Reenlistment Document provides the applicant enlisted in the United States Army Reserve at the rank of private (E-1) with an active-duty obligation of 4 years on 20 January 2016. (2) A Record of Proceedings UCMJ dated 17 April 2018 provides the applicant received a NJP for violating Article 121 of the UCMJ. They stole a $2.95 bottle of apple juice from the Army and Airforce Exchange Service (AAFES). Punishment consisted of reduction in rank to E-1, forfeiture of pay; $819 and extra duty and post restriction for 45 days. The applicant had to pay a $200 administrative cost to AAFES and pay for the actual cost of the item stolen. (3) A Electronic Copy of DD 2624, dated 1 June 2018, reflects the applicant tested positive for THC 36 during an inspection random (IR) urinalysis conducted on 18 May 2018. (4) On 5 June 2018, the applicant’s immediate commander was notified of the applicant’s confirmed positive urinalysis specimen that was tested on 18 May 2018. The commander was required to refer the applicant to the Substance Use Disorder Clinical Care (SUDCC) clinic within 5 days of notification of a positive urinalysis for illicit drugs. The applicant tested positive for THC. (5) A Developmental Counseling Form dated 5 June 2018 provides that the applicant was counseled to inform them they tested positive for cannabis during the random urinalysis that was administered on 18 May 2018. They were ordered to enroll in SUDCC, recommended for a Filed Grade Article 15 and separation from the army; they were flagged for involuntary separation. (6) A Record of Proceedings UCMJ dated 21 June 2018 provides the applicant received a NJP for violating Article 112a of the UCMJ. They wrongfully used marijuana between 15 April – 15 May 2018. Punishment consisted of forfeiture of pay, $819 and extra duty for 45 days. (7) A Report of Medical Assessment document dated 17 July 2018, provides that the applicant received a separation medical examination and was qualified for separation. (8) A Report of Mental Status Evaluation document, dated 23 August 2018, provides that the applicant received a separation mental health evaluation and was cleared for administrative action. (9) On 15 October 2018 the applicant’s immediate commander notified them of their intent to separate them under the provisions of AR 635-200, Chapter 14-12c (Misconduct-Abuse of illegal drugs) for wrongfully using marijuana. The commander recommended a General (under honorable conditions) characterization of service. The applicant acknowledged the commander’s notification and basis for separation, and their available rights. The applicant completed their election of rights and consulted with counsel on 15 October 2018. (10) On 16 October 2018 the chain of command endorsed and concurred with the commander’s recommendation. On 22 October 2018 the appropriate authority approved the separation and directed a characterization of service of General (under honorable conditions). (11) A DD Form 214 shows on 30 November 2018 the applicant was discharged accordingly, they completed total active service of 2 years and 3 months and 29 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: A Department of Veterans Affairs Rating Decision letter, provides the applicant has an adjustment disorder with mixed anxiety, depressed mood, and a sleep-wake disorder (insomnia). (2) AMHRR Listed: Adjustment disorder with depressed mood, cannabis use disorder; mild, enrollment into the Army Substance Abuse Program. 5. APPLICANT-PROVIDED EVIDENCE: 2-DD Forms 293 (Application for Review of Discharge), A Department of Veterans Affairs Rating Decision letter; provides the applicant is 70 percent service connected with the VA, a self-authored statement and a Letter of recommendation written on a Department of Veteran Affairs Statement in support of claim document: and an LOR, dated 5 August 2020 provides they have watched the applicant do a great turn around, the applicant has been focusing on providing better for their self and family. 6. POST SERVICE ACCOMPLISHMENTS: They have a goal to obtain their commercial driver’s license (CDL) and start a career as an owner operator. 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 provides the authorized types of characterization of service or description of separation. (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. A soldier subject to this discharge under this regulation will be considered and processed for discharge even though he/she has filed an appeal or has stated his/her intention to do so. 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 600-85 (Army Substance Abuse Program (ASAP)) governs the program and identifies Army policy on alcohol and other drug abuse, and responsibilities. The ASAP is a command program that emphasizes readiness and personal responsibility. (1) 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 missions. (2) Individuals who do not self-refer for treatment and are subsequently identified as positive for controlled substances for which they do not have a valid prescription may be considered in violation of the UCMJ for drug misuse/abuse. 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, misconduct (drug abuse). g. 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. h. Appendix 12, Maximum Punishment Chart in the Manual for Courts-Martial provides that wrongful use of marijuana includes a punitive discharge, confinement from 2-5 years, and total forfeiture or pay. 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. The applicant’s DD Form 214 provides that the applicant received a General (under honorable conditions) characterization of service, a under other than honorable conditions (UOTCH) discharge is normally appropriate for a soldier discharged under CH 14 for misconduct (drug abuse). b. Based on the available evidence the applicant enlisted in the army at the age of 18, on 18 May 2018 a random unit urinalysis was administered, the applicant tested positive for THC and received their second non-judicial punishment (NJP) two months after receiving their first NJP for stealing a bottle of apple juice. They were enrolled in ASAP and seen by behavioral health for sleep troubles, and an adjustment disorder with depressed mood. c. The applicant was notified of the intent to separate them for misconduct (abuse of illegal drugs), they acknowledged they understood the basis for separation under the provisions AR 635-200, CH 14-12c. They elected to consult with counsel and elected to submit a statement on their behalf (the AMHRR is void of the statement(s)). They received the required medical and mental health separation examinations that cleared them for administrative separation. d. Chapter 14 establishes policy and prescribes procedures for members being separated 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 discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier's overall record. e. Published Department of Defense 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. 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 diagnosis: Adjustment Disorder (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed with an Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that given an Adjustment Disorder is a low-level difficulty coping with stressors that does not impact an individual’s ability to make conscious choices knowing right from wrong, there is no mitigation. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the Adjustment Disorder did not outweigh the basis of separation. b. Response to Contention(s): (1) The applicant contends they had an untreated mental health diagnosis that contributed to the reason why they were discharged. The AMHRR provides the applicant was seeing mental health for mood disturbances/depressed mood. They provided a VA rating decision document that provides the applicant has an adjustment disorder mixed anxiety, a depressed mood, and a sleep-wake disorder. The Board considered this contention; however, an Adjustment Disorder is a low-level difficulty coping with stressors that does not impact an individual’s ability to make conscious choices knowing right from wrong, there is no mitigation. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board 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 insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official that the applicant's Adjustment Disorder does not 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 proper and equitable. (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 AR20210009733 1