1. Applicant's Name: a. Application Date: 23 April 2020 b. Date Received: 3 May 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. (2) The applicant seeks relief stating their discharge was inequitable because of their superior performance for 5 years and 11 months. They were reliable to many leaders and was successful in their assigned tasks and mission. They were recommended by several commissioned officers and warrant officer to better their career path. b. Board Type and Decision: In a records review conducted on 20 October 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service and post-service accomplishments. 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. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / Army Regulation 635-200, Paragraph 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 3 February 2021 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 January 2021 (2) Basis for Separation: wrongful use of marijuana, a schedule I controlled substance (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 5 January 2021 (5) Administrative Separation Board: On 5 January 2021, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 8 January 2021 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: The applicant reenlisted for a period of 5-years and extended that period of 12 months on 15 July 2019, giving the applicant a new expiration term of service date of 21 July 2021. b. Age at Enlistment Extension / Education / GT Score: 22 / NIF / 113 c. Highest Grade Achieved / MOS / Total Service: Specialist/E-4 / 15H10, Aircraft Pneudraulics Repairer / 6 years, 6 months, 12 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (31 July 2015 - 27 March 2016); Afghanistan (8 February 2019 - 28 September 2019) f. Awards and Decorations: ARCOM-2, AGCM, NDSM, GWTEM, GWTSM, ACM-CS, NCOPDR, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) Two DA Forms 4187 (Personnel Action) dated 29 May 2020, reflects the applicant was absent without leave (AWOL) from 22 May 2020 to 28 May 2020. (2) Electronic Copy of DD 2624, dated 24 July 2020, reflects the applicant tested positive for THC 194 during a probable cause (PO) urinalysis conducted on 10 July 2020. (3) DA Form 2627 (Record of Proceedings under Article 15, UCMJ) dated 9 September 2020, reflects the applicant received nonjudicial punishment for, having knowledge of a lawful order, failed to obey the same , on or about 1 May 2020; and on or about 22 May 2020, without authority, absent themselves from their unit, and did so remain absent until on or about 28 May 2020. The applicant's punishment consisted of a reduction to private first class/E-3, forfeiture of $1,000, and extra duty for 45 days. (4) DA Form 2627, dated 5 October 2020, reflects the applicant received nonjudicial punishment for, between on or about 1 July 2020 and 31 July 2020, wrongfully use marijuana, a Schedule I controlled substance. The applicant's punishment consisted of a reduction to private/E1, forfeiture of $866.00 pay, and extra duty and restriction for 45 days. (5) DA Form 3822 (Report of Mental Status Evaluation) dated 6 October 2020, reflects the applicant has no duty limitations due to behavioral health reasons and meets the retention requirements. The applicant was screened for PTSD, depression, Traumatic Brain Injury (TBI), substance misuse and sexual trauma; and no significant history was noted. Section IV (Diagnoses) states "No Diagnosis." The Behavior Health Provider stated the service member does not currently have a behavioral health condition that fails medical retention standards. (6) A memorandum, Troop D, 3rd Heavy Attack Reconnaissance Squadron, subject: Separation Under Army Regulation 635-200, Paragraph 14-12c(2), Misconduct-Abuse of Illegal Drugs [Applicant]), 4 January 2021, the applicant's immediate commander notified the applicant of their intent to separate them under the provisions of Army Regulation 635-200, Chapter 14- 12c(2), for Misconduct-Abuse of Illegal Drugs with a recommended characterization of service of general (under honorable conditions) for, on or about 7 December 2015 and 9 December 2015, wrongfully used cocaine. That same day the applicant acknowledged the basis for the separation and of the right available to them (7) On 4 January 2021, the commander submitted the request to separate the applicant prior to their expiration term of service. The commander states the applicant was AWOL and abused illegal drugs, endangering the lives of other Soldiers and civilians on Fort Bliss, their work performance has consistently decreased, and retention is not in the best interest of the service. The applicant was AWOL from 22 May 2020 to 28 May 2020. (8) On 5 January 2021, the applicant completed their election of rights signing they had been advised by counsel of the basis for their separation and its effects and of the rights available to them. (9) A memorandum, Headquarters, Combat Aviation Brigade, 1st Armored Division subject: Separation under Army Regulation 635-200, Paragraph 14-12c(2), Misconduct-Abuse of Illegal Drug, [Applicant], dated 8 January 2021, the approving authority directed the applicant will be separated from the Army prior to the expiration of current term of service and their service be characterized as General (Under Honorable Conditions). (10) On 3 February 2021, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 6 years, 6 months, and 12 days of net active service this period. The applicant completed their first full term of service; however, they did not complete their one-year enlistment extension of contractual obligation. Item 12 (Remarks) shows the applicant completed their first term of service; it is void of a continuous honorable service remark. i. Lost Time / Mode of Return: AWOL for 7 days, 22 May 2020 to 28 May 2020 j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: MSE/BHE as described in previous paragraph 4h(4). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Discharge Review) application. 6. POST SERVICE ACCOMPLISHMENTS: They still continue to further their expertise and professionalism in the aviation field. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, , (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, Title 10, U.S. Code, Section 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 (DoD) 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) 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; Title 10, U.S. Code, Section 1553; and DoD Directive 1332.41 and DoD Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 19 December 2016, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (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) A Under Other Than Honorable Conditions Discharge is an administrative separation form the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. (4) Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Paragraph 14-12c(2) (Abuse of Illegal Drugs is Serious Misconduct), stated, however; relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (5) Chapter 15 (Secretarial Plenary Authority), currently in effect, provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c(2), misconduct (drug abuse). f. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DoD Instructions 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)) provides comprehensive alcohol and drug-abuse prevention and control policies, procedures, and responsibilities for Soldiers of all components for ASAP services. Substance abuse contributes to high-risk behaviors, runs counter to Army Values and erodes personal readiness. ASAP is a mechanism within the Army Resilience Directorate system of support that, when administered appropriately, through engaged and empowered leadership, supports building personal readiness and resilience, and optimizes performances. (1) The command role in substance abuse prevention, drug and alcohol testing, early identification of problems, and administrative or judicial actions is essential. Commanders will ensure that all officials and supervisors support the ASAP. Unit commanders must intervene early and refer all Soldiers suspected of alcohol or other drug-use problems to behavioral health for a Substance Use Disorder evaluation. The unit commander will support treatment plans for all Soldiers. (2) ASAP participation is mandatory for all Soldiers who are command referred and/or subsequently enrolled in mandatory treatment. Failure to attend a mandatory counseling session may constitute a violation of Article 86 (Absence Without Leave) of the UCMJ. (3) Soldiers who fail to participate adequately in or to respond successfully to treatment will be processed for administrative separation. In addition to existing separation policies for alcohol or other drug-abuse treatment failures, Soldiers with a subsequent alcohol or drug- related incident of misconduct at any time during the 12-month period following treatment or during the 12-month period following removal form the treatment program, for any reason, will be processed for separation as an alcohol or drug-abuse rehabilitation failure. (4) All Soldier who are identified as having unauthorized use of substances or suspected substance abuse, will be referred to the Behavioral Health clinic for a Substance Use Disorder evaluation within 5 duty days of receipt of the validated positive drug test result. f. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedures regarding separation documents, it states in the preparation of the DD Form 214 for soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter in item 18 (Remarks) "Continuous Honorable Active Service From (first day of service which DD Form 214 was not issued) until (date before commencement of current enlistment). g. Manual for Courts-Martial, United States, states 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) states in subparagraph d (Maximum Punishment) the wrongful use, possession, manufacture, or introduction of controlled substance, to include marijuana, the maximum punishment consists of a dishonorable discharge, forfeiture of all pay and allowances, and confinement 2 years. 8. SUMMARY OF FACT(S): a. Standard of Review. The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. A review of the available evidence provides the applicant had no adverse information from his enlistment on 22 July 2014 until their acceptance of nonjudicial punishment for being AWOL from on or about 22 May 2020 until on or about 28 May 2020, with the occurrence taking place within approximately 10 months after their enlistment extension. The applicant also accepted nonjudicial punishment for testing positive on a command urinalysis for wrongful use of marijuana between on or about 1 July 2020 and 31 July 2020. They completed 5 months, and 19 days of their 1-year enlistment extension contractual obligation. c. The evidence shows the applicant's the applicant received a general discharge rather than a discharge under other than honorable conditions, which is normally considered appropriate. Review of their DD Form 215 provides administrative error, item 12 (Remarks) is void of the required "CONTINUOUS HONORABLE SERVICE..." remark according to Army Regulation 635-8. d. Chapter 14 establishes policy and prescribes procedures for separation 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 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 DoD guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 9. BOARD DISCUSSION AND DETERMINATION: a. KURTA FACTORS. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. The Board's Medical Advisor, reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist, or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): The applicant contends their discharge was inequitable because their superior performance of 5 year and 11 months, prior to his misconduct, should be taken into consideration. The Board considered this contention and voted to grant relief based on the applicant's record of service, frequency and nature of misconduct and reason for separation. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service and post-service accomplishments. 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 to Honorable based on the applicant's statement, record of service, the frequency and nature of the misconduct, and the reason for separation. The Board found sufficient evidence of in-service mitigating factors (Length, Quality, Combat) and post service accomplishments that mitigate the applicant's wrongful use of marijuana. Based on a preponderance of evidence the Board determined the reason for the applicant's separation was inequitable. Thus the prior characterization is no longer appropriate. (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: 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 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 AR20210010100 1