1. Applicant's Name: a. Application Date: 2 December 2020 b. Date Received: 7 December 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 under honorable conditions (general). The applicant requests an upgrade to honorable and a narrative reason change. b. The applicant states, in effect that they were going through a lot, they had just returned from Iraq and was having marital issues with their spouse. They had problems sleeping and also had back issues that hindered the from completing physical training tests and career advancement trainings. Their spouse was in a drunk driving incident that almost killed them, and instead of reaching out to someone for help they bought CBD from a gas station, they did not think it was an issue since the packaging stated there was no THC [marijuana]. They failed a urinalysis with 43ng of THC in their system after that incident they passed every screening and went to substance abuse classes and attended behavioral health longer than the required number of visits. After their article 15 reading their CSM and SCO told them that as long as they did not get in trouble for 6 months, they would be allowed to finish out their military contract. They never got in trouble again, and 9 months after the incident they were released from the military which was around the same time they were recommended for a med board. They are not saying they were not deserving of punishment, that was the one and only time they had ever been in trouble. They were a good soldier that served honorably, and they do not want this one situation to be the story of their life. Since being discharged they have done their best to further educate themselves. c. Board Type and Decision: In a records review conducted on 6 December 2023, and by a 5-0 vote, the Board determined the discharge is inequitable and voted to grant relief in the form of an upgrade of the characterization of service to Honorable, changed the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. There's no change to the RE code. 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 14-12C (2) / JKK / RE-4 / General (Under Honorable Conditions). b. Date of Discharge: 24 February 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 29 January 2020 / General under honorable conditions. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 August 2016 / 4 years b. Age at Enlistment / Education / GT Score: 26 / Bachelor's Degree / 114 c. Highest Grade Achieved / MOS / Total Service: E-4 (Corporal) / 25S10 7D Satellite Communications Systems Operator-Maintainer / 3 years, 6 months, 24 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None / Iraq (1 May 2018 - 31 January 2019) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, GWTSM, ASR, OSR, IRCM- CS g. Performance Ratings: None 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 E-4 with an active-duty obligation of 4 years on 13 July 2016. (2) An Enlisted Record Brief (ERB) provides the applicant received a rank deduction to E-3 on 19 June 2019. * Flagged with code B; effective 14 August 2019 * Suspension of a favorable personnel action * Failed APFT (Army Physical Fitness Test) November 2019 * Had an ETS date of 31 July 2020 (3) A memorandum, Headquarters, 3D Cavalry Regiment, Fort Hood, Texas, subject: Separation under AR 635-200, Ch 14-12c(2), Misconduct-Abuse of illegal drugs, provides the applicant was directed to be separated from the army with a general, under honorable conditions characterization of service on 29 January 2020. (4) A Certificate of Release or Discharge from Active-Duty document (DD Form 214) provides on 24 February 2020 the applicant was discharged from the army. * Authority: 635-200, Chapter 14-12c * Narrative Reason: Misconduct (Drug Abuse) * Service Characterization: Under Honorable Conditions (general) * Remarks: Member has not completed first term of service; service in Iraq 1 May 2018 - 31 January 2019 * Net Service: 3 years, 6 months, and 24 days * Signature: Electronically signed by the applicant i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: A physician letter dated 21 January 2020 provides the applicant was recommended for a medical board and a P3 profile. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: A DD Form 293 (Discharge Review) application, The Army Commendation Medal, The Army Achievement Medal, CompTIA Security certification, Undergraduate certificate and 4 additional enclosures in support of their application. * The Order of the Combat Spur provides the applicant was entered into the rolls of the combat spur for their discipline, competence, character, and teamwork while defeating the enemy in Iraq and Syria. * Permanent Orders, provides the applicant was awarded the Good Conduct Medal for their exemplary behavior, efficiency, and fidelity in the active military service from 1 August 2016 - 1 August 2019; this award was given after their positive urinalysis incident. * A physician letter dated 21 January 2020 provides the applicant was recommended for a medical board and a P3 profile. * A letter signed by the Garrison Commander on Fort Hood Texas; provides they rescinded baring the applicant permanently from the installation on 26 October 2020. 6. POST SERVICE ACCOMPLISHMENTS: Since being discharged they have done their best to further educate themselves. 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. It provides 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. 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 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) provides the policies, operating rules and steps governing the suspension of favorable personnel actions. A flag is emplaced during some type of disciplinary or administrative action until that action is concluded. The Flag should be initiated within 3 working days after identification of the soldiers' unfavorable status and removed within 3 working days after determination of the final disposition. Commanders and general office staff will establish necessary internal controls to ensure requirements are met: DA Form 268 is prepared to reflect that favorable personnel actions are suspended; the Flag is input into HR systems without delay. Flag code "B" is a nontransferable code used when involuntary separation or discharge is initiated (field) g. 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). h. 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. i. 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-214 provides that the applicant received a General (under honorable conditions) characterization of service, rather than an under other than honorable conditions (UOTCH) discharge which is normally considered appropriate for a soldier discharged for drug abuse. b. Based on the available evidence the applicant enlisted in the army at the age of 26, during their enlisted the deployed to Iraq for 9 months and received recognition for their performance. On 19 June 2019 the applicant was demoted to private first class and received the Army Good Conduct Medal on 31 July 2019. They were flagged for involuntary separation and processed for administrative separation; during the process the were recommended for a med- board. They were separated with 5 months remaining on their contractual obligation. c. A Review of the record provides administrative irregularity occurred in the proper retention of official records, specifically, the AMHRR is void of the applicant's entire separation packet to include documentation to support if the applicant consulted with counsel and if they received the required medical and mental health separation examinations. Due to the lack of evidence, we are unable to provide all the specific facts and circumstances surrounding the applicant's involuntary separation. Notwithstanding the lack of evidence, the record provides appropriate authority approved the separation and the applicant signed a properly constituted DD Form 214, that shows they were discharged under the provisions of Army Regulation 635- 200, Chapter 14 Misconduct (Drug Abuse) with an under honorable conditions (general) characterization of service on 24 February 2020. 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: PTSD. (2) Did the condition exist or experience occur during military service? Yes. Applicant marked OBH on the applicant's application with statements implying behavioral health and marital issues contributed. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and substance use, the basis is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the applicant's PTSD diagnosis outweighed the basis of separation. b. Prior Decisions Cited: None c. Response to Contention(s): (1) The applicant contends their CSM, and SCO told them if they didn't get into any more trouble, they would be retained in the army to finish out their contract, they had 5 months remaining on their contract when they were discharged. The Board considered this contention during board proceedings along with the totality of the applicant's service record. (2) The applicant contends they had back issues that hindered them, they were recommended for a med board 8 days before the appropriate authority approved their administrative separation. The Board considered this contention during board proceedings along with the totality of the applicant's service record. d. The Board determined the discharge is inequitable based on length, quality and combat service and voted to grant relief in the form of an upgrade of the characterization of service to Honorable, change 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. There's no change to the RE code. e. 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 sufficient evidence of an in-service mitigating factor (Length, Quality, Combat), to include post service accomplishments, and concurred with the conclusion of the medical advising official that the applicant's PTSD does mitigate the applicant's wrongful use of cannabis. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The 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: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210010463 1