1. Applicant’s Name: a. Application Date: 8 December 2020 b. Date Received: 22 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 General (Under Honorable Conditions). The applicant requests an Honorable. b. The applicant seeks relief contending their general discharge is blocking them from getting the type of jobs they desire, and they also want to attend school but they are unable to use their G.I. Bill. The applicant knows they made a mistake; however, they served their country for 7.5 years and they believe they are entitled to all of their Veteran benefits. c. Board Type and Decision: In a records review conducted on 5 January 2024, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 20 May 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 April 2019 (2) Basis for Separation: On or about 26 August – 26 September 2018, they wrongfully used Oxymorphone (OXYMOR). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 16 April 2019 (5) Administrative Separation Board: The applicant voluntarily waived consideration of their case by an administration board. (6) Separation Decision Date / Characterization: 1 May 2019 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 July 2015 / 4 years b. Age at Enlistment / Education / GT Score: 24 / High School Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92A1P Automated Logistical / 7 years 6 months 6 days d. Prior Service / Characterizations: RA, 15 November 2011 – 26 July 2015 / Honorable e. Overseas Service / Combat Service: NA f. Awards and Decorations: AAM-2, AGCM-2, NDSM, GWOTSM, NCOPDR, ASR, OSR, PRCHTBAD, MQBE-C g. Performance Ratings: 1 October 2017 – 30 September 2018 / Qualified h. Disciplinary Action(s) / Evidentiary Record: (1) On 8 June 2011, the applicant enlisted in the United States Army Reserve’s Delayed Entry Program; on 15 November 2011, they enlisted in the Regular Army for 4 years as a PFC; on 27 July 2015, they completed their first reenlistment for 4 years as a SPC. (2) The Enlisted Record Brief provides the applicant promoted to SPC on 1 September 2013 and on 1 October 2017, they reported to SGT. Their awards include two Army Achievement Medals, two Good Conduct Medals, and their Parachutist Badge. (3) 29 November 2018, the ASAP Manager notified the commander of the applicant’s positive urinalysis results for Oxymorphone (OXYMOR) and the referral to ASAP Clinic which is required within five working days of their notification. (4) On 30 November 2018, their record was flagged, Suspend Favorable Personnel Actions (FLAG), for field-initiated involuntary separation (BA). (5) Two-character statements submitted in support of their retention provides: (a) An undated character statement from SSG states they have been in the Army for 11 years and have had the honor to watch the growth of an NCO right before their eyes. They applicant has a strong personality which shows up in how much they care about professionalism, their work ethic, being a leader in the truest sense with patience and empathy. They are a positive inspiration to their peers and subordinates, working on behalf of the company and not just themselves. (b) On 2 January 2019, a character statement from SSG provides they were the Platoon Sergeant while the applicant was one of the logisticians in the Supply Support Activity (SSA) and became to know them as both a peer and as a friend. The applicant upheld a very high standard of dress and appearance. Their interaction with superiors is always good military bearing and sharp attention to customs and courtesies. They were responsible for reviewing and verifying quantities received against bills of contracts, purchase requests, and shipping documents, while also directly responsible for the health and welfare of eight Soldiers. They have sacrificed countless hours of their personal time coaching and mentoring their Soldiers both personally and professionally. SSG believes this misconduct was out of character for the applicant and they do not threaten the professional image and integrity of the Army. (6) On 9 January 2019, the applicant accepted nonjudicial punishment (NJP) in violation of Article 112a, UCMJ, for wrongful use of Oxymorphone (OXYMOR) on or about 26 August – 26 September 2018; the applicant was guilty of the specification and elected not to appeal; the punishment imposed was reduction to SPC; extra duty for 45 days; and an oral reprimand. (7) On 4 – 5 February 2019, they completed their Report of Medical History and Medical Examination which provides they suffer from off and on should pain, lower back pain, their feet go numb when they run, knee pain, panic attacks, sleep trouble, and relationship issues. The Dr. recommended the applicant follow up with their Primary Care Manager (PCM)/VA, otherwise noted they are qualified for service and cleared for separation. (8) A Mental Status Evaluation dated 7 February 2019, from BH Provider at Womack Army Medical Center (WAMC), Fort Bragg, NC, provides the applicant was screened and a follow-up was recommended to the Substance (SUDCC) at Clark Clinic; there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. The applicant was mentally responsible, can distinguish right from wrong, and possesses sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceedings. This soldier is psychologically cleared for any administrative action deemed appropriate by the separation authority. (9) On 16 April 2019, the company commander notified the applicant of their intent to separate them under the provisions of AR 635-200, Chapter 14-12c (2), Misconduct (Drug Abuse) and recommended a General (Under Honorable Conditions) characterization of service. The same day, the applicant acknowledged receipt of the separation notice and after consulting with defense counsel, they elected to voluntarily waive consideration of their case by an administrative separation board; the applicant did not submit a statement on their behalf. (10) On 24 April 2019, the battalion commander concurred with the recommendation to separate the applicant with a General (Under Honorable Conditions) characterization of service. (11) On 1 May 2019, the judge advocate reviewed for legal sufficiency and concluded the separation meets regulatory requirements. The same day, the separation approval authority approved the discharge with a General (Under Honorable Conditions) characterization of service. (12) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged accordingly on 20 May 2019, with 7 years, 11 months, and 13 days of active service. The applicant has completed their first full term of service. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge) 6. POST SERVICE ACCOMPLISHMENTS: None submitted with this 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) 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 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 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 14-12c (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 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. g. Manual for Courts-Martial (2019 Edition), 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 orders and discipline in the Armed Forces. Article 92 (failure to obey order) states in subparagraph the maximum punishment consists of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. h. Title 38, U.S. Code, Sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered, medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by the agency. 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 Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. b. A review of the available evidence provides the applicant reenlisted in the RA as a SPC and promoted to SGT; their awards include two Army Achievement Medals, two Army Good Conduct Medals, and the Parachutist Badge, serving a total of 7 years and 15 days prior to their indiscipline. Their record was flagged, Suspend Favorable Personnel Actions (FLAG), for wrongful use of Oxymorphone (OXYMOR) in November 2018 and as a result, they accepted NJP which imposed a reduction in rank to SPC, and 45 days of extra duty. They were processed for separation IAW AR 635-200, Chapter 14-12c (2), Misconduct (Drug Abuse). After consulting with defense counsel, the applicant elected not to submit a statement on their behalf and to waive their right to an administrative separation board. (1) They received a separation physical and a mental status evaluation determining the applicant was qualified for service and cleared for separation, with a recommendation to follow- up with SUDCC/VA. The applicant was discharged with a General (Under Honorable Conditions) characterization of service and completed 3 years, 9 months, and 24 days of their 4- year contractual obligation. c. 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. d. 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 is 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? No. 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. Prior Decisions Cited: NA c. Response to Contention(s): The applicant contends their general discharge is blocking them from getting the type of jobs they desire, and they also want to attend school, but they are unable to use their G.I. Bill. The applicant knows they made a mistake; however, they served their country for 7.5 years and they believe they are entitled to all of their Veteran benefits. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered, medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by the agency. d. 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 that the discharge was improper or inequitable. e. Rationale for Decision: (1) 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 the applicant did not have a BH condition to mitigate the applicant's misconduct of two-time positive urinalysis results for Oxymorphone. 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 AR20210010480 1