1. Applicant’s Name: a. Application Date: 9 February 2020 b. Date Received: 18 March 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 contending, in effect, their discharge was based on conduct that stemmed from service-related stress. b. Board Type and Decision: In a records review conducted on 29 September 2023, 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) / Army Regulation 635-200, Paragraph 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions b. Date of Discharge: 8 April 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: Based on applicant acknowledgment of notification, on or about 17 February 2005. (2) Basis for Separation: testing positive for marijuana on 15 June 2004 and 9 December 2004 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 23 February 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 14 March 2005 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 November 2003 / 3 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 118 c. Highest Grade Achieved / MOS / Total Service: E-2 / 52D10, Power Generator Equipment Repairer / 1 year, 5 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: NA f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated17 July 2004, reflects the applicant received nonjudicial punishment for, on or about 15 May 2004 and 15 June 2004, wrongfully use marijuana. Punishment consisted of a reduction to the rank/grade of private/E-1, forfeiture of $597.00 per month for 2 months, extra duty for 45 days and restriction for 30 days. (2) Electronic Copy of DD2624, dated 20 December 2004, reflects the applicant tested positive for THC 25 during an Inspection Unit (IU) urinalysis conducted on 9 December 2004. (3) DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) dated 18 January 2005, reflects the initiation of a flag effective the same date for initiation of elimination action. DA Form 4126-R (Bar to Reenlistment Certificate) dated 19 January 2005, reflects the application's commander's recommendation to bar the applicant from reenlistment in the United States Army for nonjudicial punishment under the Provision of Article 15, UCMJ for the wrongful use of marijuana. (4) DA Form 2808 (Report of Medical Examination) dated 26 January 2005, reflects the applicant is qualified for service with no disqualifying medical conditions or diagnoses. (5) Mental Status Evaluation, dated 26 January 2005, reflects the applicant has the mental capacity to understand and participate in the proceedings, mentally responsible and meets the retention requirements. The Mental Health Specialist stated the applicant was referred for psychiatric evaluation in conjunction with separation actions. There is no evidence of any psychiatric condition which would warrant disposition through medical channels. The Service Member is psychiatrically cleared for any administrative action deemed appropriate by their command. (6) DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 7 February 2005, reflects the applicant received nonjudicial punishment for, on or about 9 November 2004 and 9 December 2004, wrongfully use marijuana. Punishment consisted of forfeiture of $500.00 pay for 2 months and 45 days extra duty. (7) On 17 February 2005, the applicant acknowledged receipt of their immediate commander's notification indicating their intent to separate them under the provision of Army Regulation 635-200, chapter 14, paragraph 14-12c, for testing positive for marijuana on 15 June and 9 December 2005. (8) A memorandum, 612th Quartermaster Company (Aerial Supply), 530th Supply and Service Battalion, subject: Involuntary Separation in accordance with Army Regulation 635-200, Chapter 14, Section III, Paragraph 14-12c, Commission of a Serious Offense (Abuse of Illegal Drugs, undated, provides the Commander's Report, in which the applicant's immediate commander answered "N/A" to the questions "Description of rehabilitation attempts, if applicable," "Record of other disciplinary action including nonjudicial punishment," and "Note other derogatory data other than Article 15 action and court-martial." Additionally, for the entry "Statement why commander does not consider it feasible or appropriate to accomplish other disposition" the commander states the applicant tested positive for illegal use of a controlled substance. (9) A memorandum, Headquarters, 1st Corps Support Command, subject: Involuntary Separation in Accordance with Army Regulation 635-200, Chapter 14, Section III, Paragraph 14-12c Commission of a Serious Offense (Abuse of Illegal Drugs), dated 14 March 2005, the separation authority directed the applicant will be issued a General Discharge Certificate. (10) On 8 April 2005, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 1 year, 5 months, and 4 days of net active service this period. i. Lost Time / Mode of Return: NA j. Behavioral Health Condition(s): (1) Applicant provided: On 27 July 2022, the Army Review Boards Agency sent the applicant a letter and requested they provide additional documentation in support of the PTSD claim on their petition. As of date, no additional documentation has been submitted. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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), 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; 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), 15 July 2004, provided 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) 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. 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)) dated 15 October 2001, prescribed policies and procedures to implement, administer, and evaluate the ASAP. The ASAP is a command program that emphasizes readiness and personal responsibility. 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 mission. (1) Unit commanders must intervene early and refer all Soldiers suspected or identified as alcohol and/or drug abusers to the ASAP. The unit commander should recommend enrollment based on the Soldier’s potential for continued military service in terms of professional skills, behavior, and potential for advancement. (2) ASAP participation is mandatory for all Soldiers who are command referred. Failure to attend a mandatory counseling session may constitute a violation of Article 86 (Absence Without Leave) of the UCMJ. (3) Alcohol and/or other drug abusers, and in some cases dependent alcohol users, may be enrolled in the ASAP when such enrollment is clinically recommended. Soldiers who fail to participate adequately in, or to respond successfully to, rehabilitation will be processed for administrative separation and not be provided another opportunity for rehabilitation except under the most extraordinary circumstances, as determined by the Clinical Director in consultation with the unit commander. (4) All Soldier who are identified as drug abusers, without exception, will be referred to the ASAP counseling center for screening; be considered for disciplinary action under the UCMJ, as appropriate; and be processed for administrative separation in accordance with Army Regulation 635-200. f. Manual for Courts-Martial, United States (2002 Edition) stated, 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) stated in subparagraph e (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 5 years. 8. SUMMARY OF FACT(S): a. 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 accepted nonjudicial punishment on two occasions and tested positive on a command urinalysis for wrongful use of marijuana: with the first occurrence taking place within approximately 6 months from their enlistment. They completed 1 year, 5 months, and 4 days of their 3-year contractual obligation. b. The evidence shows the applicant received a general discharge rather than a discharge under other than honorable conditions, which is normally considered appropriate. 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. Neither the applicant nor the AMHRR provide documentation of a diagnosis related to service-related stress. 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. 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 which were void of behavioral health. The applicant did not submit civilian medical records for review. However, the applicant asserts military related stress contributed to the discharge which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist, or experience occur during military service? Yes. The applicant asserted service related stress contributed to the misconduct. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that documentation is insufficient; there are no known conditions or experiences for consideration to include the applicant specifying a diagnosis within assertion. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s military related stress outweighed the basis for applicant’s separation for wrongful use of marijuana for the aforementioned reasons. b. Response to Contention(s): The applicant contends their discharge was based on conduct that stemmed from service-related stress. In an attempt to complete the record, the Army Review Boards Agency sent a letter requesting the applicant submit additional documentation in support of their petition. To date the applicant has not responded. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s military related stress did not excuse or mitigate the offenses of wrongful use of marijuana. The Board also considered the applicant's contention regarding their discharge was based on conduct that stemmed from service-related stress and found that totality of the applicant's record does not warrant a discharge upgrade. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (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 AR20210012926 1