1. Applicant's Name: a. Application Date: 28 January 2022 b. Date Received: 28 January 2022 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable and a narrative reason change. The applicant seeks relief contending, in effect, that before and after the incident, the applicant's service was nothing less than honorable. The neglect of the clinic takes a dominant role in the event that led to the incident. The statement in the Squadron Counselling was not accurate about the applicant's pursuit of help from leadership. No actions were taken against the neglectful parties that led to the incident. The applicant states that action taken by command has adversely affected the applicant mentally, emotionally, and socially. The totality of the applicant's service and character, and the circumstances that led to separation were not considered in the applicant discharge. Getting an upgrade will help the applicant present the applicant's military service with the pride it deserves, open opportunities the applicant lost, and help mend emotional wounds that were left open from the time the applicant learned of the administrative actions that were being taken. The applicant squadron counseling states that the applicant willfully chose to self-medicate and did not seek help from leadership, but that is incorrect. When the applicant's knee injury escalated, the applicant sought help, and the applicant's leadership was aware. The clinic responsible for helping the applicant was aware and neglected to help, and the applicant's leadership was also aware of that fact. The worst part is that there was little progression in identifying the type of injury even after the incident. The applicant did not take the pills given to the applicant for fun or addiction. They were given to the applicant for a painful injury that was concerning. The applicant did not take any controlled medication that a doctor did not prescribe before and after that day. Veteran Affairs has evidence on record going back a few years of drug screening that will show the applicant did not abuse substances. If the narrative remains "abuse of a controlled substance" the applicant will be looked at as a drug addict by society. b. Board Type and Decision: In a telephonic hearing conducted on 5 December 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, and isolated nature of the misconduct. 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. Please see Section 10 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 / Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 15 December 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 September 2014 (2) Basis for Separation: The applicant was informed of the following reasons: for wrongfully using oxycodone and oxymorphone. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 30 September 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 25 November 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 March 2012 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19D10, Cavalry Scout / 2 years, 9 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM-2, NDSM, GWOTSM, KDSM, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 22 July 2014, reflects the applicant tested positive for OXCOD 119 and OXMOR 557 during an Inspection Random (IR) urinalysis testing conducted on 15 July 2014. CID Report, dated 19 August 2014, indicating the applicant was the subject of investigation for the wrongful possession and use of Percocet. FG Article 15 dated 12 September 2014, for the wrongful use of oxycodone and oxymorphone on or about 5 July 2014. The punishment consisted of reduction to E-3, extra duty, and restriction for 20 days, and an oral reprimand. Report of Mental Status Evaluation, dated 21 August 2014, indicates the applicant was mentally responsible, able to distinguish right from wrong, and had the mental capacity to understand and participate in administrative/board proceedings. The applicant was psychiatrically cleared for any administrative action deemed appropriated by his command. Counseling statement for testing positive for a controlled substance (Oxycodone and Oxymorphone) when the troop conducted a urinalysis on 15 July 2014. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Conditions: Report of Mental Status Evaluation, dated 21 August 2014, reflects the applicant was diagnosed with Alcohol Abuse in remission. The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command. 5. APPLICANT-PROVIDED EVIDENCE: Online application; self-authored statement; letters of support. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the 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) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states 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. (3) Paragraph 3-7b states 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. (4) Paragraph 3-7c states 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. (5) 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. (6) Paragraph 14-3 prescribes 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. (7) Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing 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 under paragraph 14- 12a or 14-12b as appropriate. 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 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-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. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable and a narrative reason change. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record of Service (AMHRR) indicates separation action was initiated against the applicant for wrongfully using oxycodone and oxymorphone. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c (2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending, in effect, that before and after the incident, the applicant's service was nothing less than honorable. The neglect of the clinic takes a dominant role in the event that led to the incident. The statement in the Squadron Counselling was not accurate about the applicant pursuit of help from leadership. No actions were taken against the neglectful parties that led to the incident. The actions taken by command adversely affected the applicant mentally, emotionally, and socially. The totality of the applicant service's character and the circumstance that led to the applicant's separation were not considered at the time of discharge. Getting an upgrade will help present the applicant service with the pride it deserves and open opportunities the applicant lost and help mend emotional wounds that were left open since the applicant learned of the pending discharge. The applicant squadron counseling states that the applicant took chose to self-medicate and did not seek help from the applicant leadership but that is incorrect. When the applicant's knee injury escalated, the applicant sought help, and the applicant's leadership was aware. The clinic responsible for helping the applicant was aware and neglected to help, and the applicant's leadership was also aware of that fact. The worst part is that there was little progression in identifying the type of injury even after the incident. The applicant did not take the pills given to the applicant for fun or addiction. They were given to the applicant for a painful injury that was concerning. The applicant did not take any controlled medication that a doctor did not prescribe before and after that day. Veteran Affairs has evidence on record going back a few years of drug screening that will show the applicant did not abuse substances. If the narrative remains "abuse of a controlled substance" the applicant will be looked at as a drug addict by society. The applicant's contentions were noted; however, it should also be noted the applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career. As noted in the CID Report, the applicant admitted he consumed two Percocet pills he was not prescribed. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A. b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): N/A. 10. 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 diagnoses/experiences: Adjustment Disorder, Neurosis with additional diagnoses of Persistent Depressive Disorder, and Unspecified Anxiety Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's Adjustment Disorder related to stressors existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there is no evidence an Anxiety or Depressive Disorder existed in-service. Even in applying the in-service Adjustment Disorder in an abundance of caution, an Adjustment Disorder is merely a low level, temporary difficulty adjusting or coping with psychosocial stressors that do not impair cognitive abilities; the diagnosis would not impact ability to know right from wrong and understand the consequences. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's Adjustment Disorder outweighed the basis for applicant's separation - wrongful use of oxycodone and oxymorphone - for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends good service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. Ultimately the Board determined an upgrade was warranted based on the applicant's length and quality of service, and isolated nature of the misconduct. (2) The applicant contends that actions taken by the applicant's command and by the clinic adversely affected the applicant mentally, emotionally, and socially, and the applicant's character was not considered during separation. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's length and quality of service, and isolated nature of the misconduct outweighing the basis for separation. (3) The applicant contends that an upgrade will allow the applicant benefits the applicant lost out on. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service and isolated nature of the misconduct outweighing the wrongful use of drugs, thus warranting an upgrade. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on the applicant's length and quality of service and isolated nature of the misconduct outweighing the basis for separation - wrongful use of oxycodone and oxymorphone. 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 RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 11. 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, 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 AR20220002291 1