1. Applicant's Name: a. Application Date: 1 May 2022 b. Date Received: 10 May 2022 c. Counsel: 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, a narrative reason change, a separation code change, and a reentry code change. The applicant seeks relief contending, in effect, the discharge was procedurally and substantively defective, and remains unfair. The applicant was unjustly and erroneously discharged with a general (under honorable conditions) character of service. The applicant's discharge was the result of "a hasty command-initiated request for separation," without consideration for rehabilitation, nor was the applicant given reasonable time to overcome deficiencies. The events leading to the discharge are no longer relevant to the applicant's life. The applicant has lived in a responsible manner. There is no valid equitable purpose in leaving the discharge in place. The applicant tried managing the stress and coping with the family and personal issues which involved going through divorce proceedings; the spouse and children moving to another state without informing the applicant; the grandmother being hospitalized for COVID-19; and attending to the demands of the job, which led to the March 2020 failed random urinalysis test, followed by a flagging action for being under investigation and being found guilty of using marijuana. The applicant was experiencing increased depression over the loss of the marriage and family. The battalion commander, at the time, understood the applicant's situation and being close to completing the enlistment contract, had allowed the applicant to stay and finish the remaining two months. The applicant completed the Article 15 punishment and the ASAP program in three days. However, a change of command with a new brigade commander, trumped the battalion commander's decision to allow the applicant to complete the enlistment contract. Since the discharge, the applicant struggled with finding a decent job to provide for the children. The applicant's two drug tests with Allied Universal within a year were negative. The applicant only tried marijuana once, which led to the discharge, and has no plans of using any illegal drugs, because the one incident caused more trouble than the applicant ever wanted. The applicant further details the contentions in an allied self-authored statement provided with the application. The applicant is pursuing a degree in electrical engineering and awaiting a decision on a security guard position the applicant applied for. Granting a relief would have a significant impact on the applicant's ability to received proper benefits and recognition. The counsel further details the contentions in an allied legal brief provided with the application. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 3 April 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, post-service accomplishments, prior period of honorable service, honesty and accepting of responsibility during telephonic testimony outweighed the one-time drug use. 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: 12 February 2021 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 April 2019 / two years b. Age at Enlistment / Education / GT Score: 25 / High School Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 5 years, 9 months, 26 days d. Prior Service / Characterizations: ARNG, 17 April 2015 - 20 September 2015 / NA ADT, 21 September 2015 - 25 February 2016 / HD ARNG, 26 February 2016 - 10 January 2017 / HD RA, 11 January 2017 - 31 March 2019 / HD e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AAM, AGCM, NDSM, ASR The applicant's AMHRR reflects award of the AUSA, however, the award is not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant's Enlisted Record Brief (ERB), dated 17 June 2021, reflects the applicant was flagged for Involuntary Separation or Discharge (Field Initiated) (BA), effective 18 May 2020; was ineligible for reenlistment due to pending separation (9V). The Assignment Eligibility Availability code "L" reflects "Soldier eligible for PCS reassignment, subject to normal PCS TOS restrictions." The applicant's ETS date reflects 31 March 2021. The applicant was never reduced in rank. The applicant's DD Form 214 reflects the applicant had completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12c(2), with a narrative reason of Misconduct (Drug Abuse). The DD Form 214 was not authenticated with the applicant's electronic signature. The applicant had no time lost. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; attorney brief; ASAP Prime for Life certificate; and applicant's self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is pursuing a degree in electrical engineering and awaiting a decision on the security guard position the applicant applied for. 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) 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) 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. (5) 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. (6) 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, 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, a narrative reason change, a separation code change, and a reentry code change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's electronic signature. The applicant's DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c(2), by reason of Misconduct (Drug Abuse), with a characterization of service of General (Under Honorable Conditions). The applicant contends the narrative reason for the discharge needs to be changed. 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 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 contends the SPD code should be changed. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c(2), is "JKK." The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends the discharge was procedurally and substantively defective, and remains unfair, and the applicant was unjustly and erroneously discharged with a general (under honorable conditions) character of service. The applicant's available AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. Although the applicant is scheduled for a personal appearance hearing, it would still be the applicant's responsibility to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration, since the discharge packet is not available in the official record. The applicant contends the discharge was the result of a hasty command-initiated request for separation, without consideration for rehabilitation, nor was the applicant given reasonable time to overcome deficiencies. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The applicant contends managing the stress and coping with family and personal issues such as going through divorce proceedings; the spouse and children moving to another state without informing the applicant; the grandmother being hospitalized for COVID-19; and attending to the demands of the job, affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends having to experience increased depression over the loss of the marriage and family. The applicant's AMHRR contains no documentation of any behavioral health diagnosis. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The ARBA sent a letter to the applicant at the address in the application on 27 December 2022 requesting documentation to support a behavioral health diagnosis but received no response from the applicant. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment to provide for the children. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends never having been in trouble, except for the one incident leading to the discharge. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends being in pursuance of a degree in electrical engineering and awaiting a decision on a security guard position the applicant applied for. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends granting a relief would have a significant impact on the applicant's ability to received proper benefits and recognition. Eligibility for veterans' benefits does 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. 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 and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 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. 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: applicant asserts depression in-service. . (2) Did the condition exist or experience occur during military service? Yes. Applicant asserts depression in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. After applying liberal consideration, the Board's Medical Advisor determined that the applicant's asserted depression could mitigate the applicant's drug use. However, the Board Medical Advisor was unable to provide a medical opine on whether the applicant's depression actually mitigates the applicant's misconduct as there is no evidence in the applicant's official medical record or provided by the applicant other than the applicant's testimony. Accordingly, there is no medical mitigation with the available evidence. (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 asserted depression outweighed the accepted basis for separation - drug use. b. Response to Contention(s): (1) The applicant contends good service, and never having been in trouble, except for the one incident leading to the discharge. The Board considered this contention and determined that the totality of the applicant's service record outweighed the one-time drug use as detailed in Section 9c, below, and relief was warranted. (2) The applicant contends the discharge was procedurally and substantively defective, and remains unfair, and the applicant was unjustly and erroneously discharged with a general (under honorable conditions) character of service. The Board considered this contention of vague impropriety during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the totality of the applicant's service record outweighing the one-time drug use. (3) The applicant contends the discharge was the result of a hasty command-initiated request for separation, without consideration for rehabilitation, nor was the applicant given reasonable time to overcome deficiencies. The Board considered this contention of vague impropriety during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the totality of the applicant's service record outweighing the one-time drug use. (4) The applicant contends managing the stress and coping with family and personal issues such as going through divorce proceedings; the spouse and children moving to another state without informing the applicant; the grandmother being hospitalized for COVID-19; and attending to the demands of the job, affected behavior and ultimately caused the discharge. The Board considered this contention of severe family circumstances affecting behavior, but ultimately did not address the contention due to an upgrade being granted based on the totality of the applicant's service record outweighing the one-time drug use. (5) The applicant contends having to experience increased depression over the loss of the marriage and family. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board considered this contention and determined that the applicant's claim of depression did not warrant relief to the discharge. (6) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment to provide for the children. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (7) The applicant contends the narrative reason/SPD code and RE-code for the discharge needs to be changed. The Board considered this contention and determined the requested relief was warranted based on the applicant's length and quality of service, post- service accomplishments, prior period of honorable service, honesty and accepting of responsibility during telephonic testimony outweighed the one-time drug use. (8) The applicant contends being in pursuance of a degree in electrical engineering and awaiting a decision on a security guard position the applicant applied for. The Board considered this contention and determined the applicant's post-service accomplishments were part of the justification used during deliberations that relief was warranted. (9) The applicant contends granting a relief would have a significant impact on the applicant's ability to received proper benefits and recognition. 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, post-service accomplishments, prior period of honorable service, honesty and accepting of responsibility during telephonic testimony outweighed the one-time drug use. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14- 12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's length and quality of service, post-service accomplishments, prior period of honorable service, honesty and accepting of responsibility during telephonic testimony outweighed the one-time drug use. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted to change the RE code to RE-3. 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 AR20220008499 1