1. Applicant’s Name: a. Application Date: 16 June 2020 b. Date Received: 23 June 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. b. The applicant states, in effect that a change to their characterization of service would better their opportunities. c. Board Type and Decision: In a records review conducted on 13 October 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) / AR 635- 200 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 18 December 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 03 November 2020 (2) Basis for Separation: Wrongfully used Tetrahydrocannabinol (THC) (3) Recommended Characterization: General (under honorable conditions) (4) Legal Consultation Date: 09 November 2020 (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 18 November 2020 / General (under honorable conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 January 2017 / 3 years, 24 weeks b. Age at Enlistment / Education / GT Score: 18 / Highschool / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 (Specialist) / 92W10 Water Treatment Specialist / 3 years, 10 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, GWTSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: (1) On 18 November 2016, the applicant enlisted in the Regular Army for a period of 3 years and 24 weeks. An Oath of Extension of Enlistment shows the applicant extended their service for a period of 12 months which readjusted their expiration term of service to 9 July 2021. (2) A Rights Warning Procedure/Waiver Certificate document provides that on 27 August 2020 a special agent from the United States Army Criminal Investigation Command, provides the applicant was a suspected of wrongful use, possession, distribution etc. of a controlled substance and denied wanting a lawyer present. (3) A Sworn Statement document provides that the applicant made a statement under oath on 27 August 2020; “…. MP’s, came inside, looked around the room and found marijuana”. The applicant was asked and answered the following questions: * Was the marijuana yours? “No” * How do you smoke the marijuana? “Blunts” * Do you know it is illegal to use controlled substance in the army? “Yes” * How often do you smoke blunts? “Every day almost” * Did you flush drugs down the toilet when military police came in the room “I did not” (4) Six sworn statements from the Military Policeman who were involved provide details of their interaction prior to CID arriving which included, in pertinent part, the following statement: * “We could hear the shower in the bathroom running… when then heard the toilet flushing... we told the other person to come out the bathroom, the [applicant] came out the bathroom” * “After the bathroom was empty, one of the MP’s identified potential drugs and drug paraphernalia” o How many toilet flushes did you hear? “I believe three times” o Did you see any drugs or paraphernalia in the room “no I did not” o Was there any traces of anything they flushed in the toilet? “I did not look at the toilet” * “I did not see any residue fragments of anything in the toilet or shower…behind the door a saw a tray that had a green leafy substance” The [applicant] spouse admitted there was marijuana in the bathroom and nowhere else...” * “Debriefed me about the situation…they found drugs in [applicant] spouse room and [applicant] spouse was AWOL for almost a week… Commander called MPs for health and welfare check… found out there were drugs and the [applicant] in the room” * “I arrived on the scene and started searching their room, there were no narcotics found inside the room. I then searched the “applicant” and transported them to the CID office” * “Kept saying they made more money in the past few days then they did in the military, they said they were smoking weed for a while and wanted to get caught to get kicked out the army” (5) A Developmental Counseling Form dated 08 September 2020 provides that the applicant was counseled to inform them that a Flag was imposed; On 27 August 2020 they were detained by the Fort Bragg Military Police for being in possession of an illegal substance.” (6) Electronic Copy of DD 2624, dated 11 September 2020, reflects the applicant tested positive (redacted) during a Probable Cause (PO) urinalysis conducted on 28 August 2020. (7) A Report of Medical Assessment document dated 14 September 2020, provides that the applicant received a separation medical assessment/examination and was cleared for administrative separation. (8) A Report of Mental Status Evaluation document, dated 16 September 2020, provides that the applicant received a mental health evaluation that psychologically cleared them for any administrative action deemed appropriate by the separation authority. (9) A CID Form 94 (Agent’s Investigation Report) provides that on 29 September 2020 CID received the results back from the probable cause urinalysis; the applicant tested positive for THC. (10) A memorandum, Department of the Army, 127th Water Support Company, Fort Bragg North Carolina, subject: Separation under AR 635-200, Chapter 14-12c, Misconduct – Abuse of illegal Drugs, [the applicant] dated 03 November 2020 provides the immediate commander notified the of their intent to separate them for wrongful use of THC, a Schedule I controlled substance with recommendation that they receive a General (under honorable conditions) characterization of service. (a) On 3 November 2023, the applicant acknowledged receipt of the separation notification, the basis for the contemplated action, and their available rights. (b) On 9 November 2020 after consulting with counsel, the applicant completed their election of rights and elected not to submit a statement on their behalf. On the same day the commander submitted the recommendation for separation, it provides the applicant received nonjudicial punishment on 21 October 2020; Additionally, the “Note other derogatory data other than Article 15 action and courts-martial: On 26 July 2019, the SM’s commanding officer- initiated separation under Chapter 14-12c (2), Misconduct-Abuse of Illegal Drugs. On 20 August 2019 the commanding general officer, 3rd Expeditionary Sustainment Command, directed the SM to be separated with a characterization of Service of General (under honorable conditions), the that the separation be suspended for a period of 12 months.” (11) On 12 November 2020 the chain of command endorsed and concurred with the commander’s recommendation. On 18 November 2020 the appropriate authority approved the separation and directed a characterization of service of General (under honorable conditions). (12) On 18 December 2020 the applicant was discharged accordingly, their DD Form 214 shows they completed 3 years, 10 months, and 25 days of NET active service this period; the remarks section shows they completed the first full term of service, and the applicant was extended [involuntarily] for the convenience of the government. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: A copy of their VA Medical Records, which include a problem list that provides the applicant has a cannabis dependence problem and 55 pages of miscellaneous medical documents. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for Review of Discharge), A Department of Veterans Affairs summary of benefits letter; provides the applicant is 70 percent service connected, A VA problem list; provides the applicant has a cannabis dependence problem, A medication list and 54 pages of miscellaneous medical documentation in support of their application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted in support of 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 provides the authorized types of characterization of service or description of separation. (1) An Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (2) A General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (3) An Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. A soldier subject to this discharge under this regulation will be considered and processed for discharge even though he/she has filed an appeal or has stated his/her intention to do so. Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial (5) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) governs the program and identifies Army policy on alcohol and other drug abuse, and responsibilities. The ASAP is a command program that emphasizes readiness and personal responsibility. (1) The ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier’s chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army values and the standards of performance, discipline, and readiness necessary to accomplish the Army’s missions. (2) Individuals who do not self-refer for treatment and are subsequently identified as positive for controlled substances for which they do not have a valid prescription may be considered in violation of the UCMJ for drug misuse/abuse. f. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKK” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (drug abuse). g. 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. h. DA Pamphlet 601-280 (Army Retention Program and Procedures) prescribes the criteria and procedures for the Army Retention Program. For those Soldiers serving in the Regular Army, it outlines procedures for immediate continued service. Table 5–2, Extension types and required statements provides when being extended on behalf of the government the Oath of Extension must include “In the best interest of the service. i. 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 that 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 DD Form 214 provides that the applicant received a General (under honorable conditions) characterization of service, a under other than honorable conditions (UOTCH) discharge is normally appropriate for a soldier discharged under CH 14 for misconduct. b. Based on the available evidence, the applicant enlisted in the army at the age of 18, at some point between May 2020 – 23 July 2020 they married another service member. A health and welfare check was conducted by Military police after the applicant’s spouse was AWOL. The applicant was located with their spouse and marijuana found at the premises. The applicant admitted knowing that marijuana was an illegal controlled substance in the Army. On 11 September 2020 the applicant tested positive for THC, the active ingredient in marijuana from a probable cause urine sample that was taken on 28 August 2020. (1) The applicant’s AMHRR provides a complete separation packet with the specific circumstances and events that led to their discharge from the Army. The applicant received a medical and mental health evaluation and was cleared for administrative separation. The applicant was notified of the intent to separate them for misconduct (drug abuse); they acknowledged understanding the basis for separation under the provisions AR 635-200, CH 14- 12c. They consulted with counsel and elected not to submit a statement on their behalf. (2) Additionally, the Commander’s Report for Separation provides at some point prior to July 2019, for unknown reasons the applicant underwent the separation process for misconduct and although approved the commanding general directed the separation be suspended for 12 months. (3) The applicant completed their enlistment contractual obligation of 3 years and 24 weeks and were involuntarily extended for the convenience of the government which resulted in completing 3 years, 10 months, and 25 days of NET active service this period. (a) Based on information in the Commander’s Report, specifically referring to the first separation action initially approved and suspended for 12 months, the applicant completed approximately 2 years and 6 months of service prior to their first act of indiscipline. Based on their Enlistment Document and Oath of Extension, they did complete their first term of service; however, the service was not continuous honorable service and the applicant still had 6 months and 21 days of their extension contractual obligation. We are unable to determine if the applicant was, in fact, extended for the convenience of the government, the record provides one oath of extension, and it shows the extension was voluntary and for continued service; it is void of an extension that shows for the convenience of the government. (b) DA Pamphlet 601-280 provides when a soldier is extended for convenience of the government the oath of extension must have “In the best interest of service.” c. The applicant provides a copy of their VA Disability Ratings that show they are receiving 70% compensation; however, disabilities which occur, or which worsen after a Soldier is separated are treated by and compensated for by the VA. Any claims or issues concerning treatment or compensation for service-connected disabilities should be addressed to that Agency. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. d. Chapter 14 establishes policy and prescribes procedures for members being separated for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier's overall record. e. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Chronic Adjustment DO (CAD) (50%SC). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection establishes that applicant's CAD occurred during service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH condition, CAD. As there is an association between Chronic Adjustment DO (CAD) and the use of illicit drugs to self-medicate symptoms, there is a nexus between her CAD and her wrongful use of THC. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience did not outweigh the basis of separation. b. Response to Contention: The applicant did not make any contentions or provide any evidence to support that the discharge was improper or inequitable. The Board reviewed all available evidence and determined that no relief was warranted at this time. c. 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(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 due to the following factors: the Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official that the applicant's Chronic Adjustment DO (CAD) does not mitigate the totality of the applicant's misconduct (specifically refusal to attend SUDCC, distribution of marijuana, willful use of cannabis as means to be discharged). 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 AR20220008787 1