1. Applicant's Name: a. Application Date: 16 July 2016 b. Date Received: 12 July 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, that he was denied due process of the UCMJ (AR 635-200 and AR 600-85). He contends he should have been in the ASAP program and evaluated by a drug and alcohol counselor while in the military. He served in Iraq immediately after basic training and AIT. Per the Board's Medical Officer, based on the information available for review at the time, case file, AHLTA and JLV reviewed. AHLTA files contain very little content and no Behavioral Health notes. JLV indicates applicant is 30% SC for Mood Disorder. He has also been diagnosed with PTSD related to combat experiences by the VA. He also incurred a mild TBI when his vehicle was hit by an IED causing him to hit his head on the roof of the vehicle. Based on the available information, it is the opinion of the Board's Psychiatrist that this applicant has a Behavioral Health condition-PTSD-which is mitigating for the offense of using marijuana after his deployment. As PTSD is associated with the use of illicit substances to self-medicate symptoms, there is a nexus between his PTSD and his misconduct of marijuana use. PTSD is not mitigating for his first positive urinalysis for marijuana as this positive occurred before he developed PTSD. In a records review conducted at Arlington, VA on 13 September 2017, and by a 4-1 vote the Board determined that the discharge was improper. The evidence in the record confirms that the applicant was not referred to ASAP IAW AR 600-85. Therefore, the discharge being improper 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, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, Paragraph 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 2 November 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 October 2005 (2) Basis for Separation: The applicant was informed of the following reasons: wrongfully using marijuana on two occasions and failing to report to his appointed place of duty. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 October 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 25 October 2005 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 November 2003 / 3 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 42A10, Human Resources Specialist / 1 year, 11 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (17 June 2004 to 16 June 2005) f. Awards and Decorations: NDSM, ASR, GWOTEM, GWOTSM g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 11 July 2004, for wrongfully using marijuana between 26 April 2004 and 26 May 2004. The punishment consisted of reduction to E-1, forfeiture of $596 pay per month for two months; and 45 days extra duty and restriction. CG Article 15, dated 20 April 2005, for failure to go at the time prescribed to his appointed placed of duty on 7 April 2005. The punishment consisted of reduction to E-2 (suspended), forfeiture of $323 pay, and 14 days extra duty and restriction. There is a positive urinalysis report contained in the record coded: PO (Probable Cause), dated 14 September 2005, that shows the applicant tested positive for THC 184 on 23 August 2005. FG Article 15, dated 14 October 2005, for wrongfully using marijuana between 25 July 2005 and 23 August 2005. The punishment consisted of reduction to E-1, forfeiture of $617 pay per month for two months; and 45 days extra duty and restriction. Negative counseling statement dated 3 October 2005, for testing positive on a urinalysis test for a second time. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; document from Department of Veterans Affairs (Appointment of Veterans Service Organization as Claimant's Representative); DD Form 214; several letters of support; and extracts from AR 635-200 and AR 600-85. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. Furthermore, by violating the Army's policy not to possess or use illegal drugs, the applicant compromised the 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 and diminished the quality of her service below that meriting an honorable discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant seeks relief contending that he was denied due process of the UCMJ (AR 635- 200 and AR 600-85). He contends he should have been in the ASAP program and evaluated by a drug and alcohol counselor while in the military. He served in Iraq immediately after basic training and AIT. The applicant's contentions were noted; however, evidence in the records shows the applicant wrongfully used marijuana on two occasions and failed to report to his place of duty. The applicant was counseled and through subsequent behavior, he demonstrated a lack of acceptance to the rehabilitative measures. AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was denied his due process. The applicant's statements alone does not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. It should be noted, by regulation, an under other than honorable conditions (UOTHC) discharge is normally appropriate for a member separated by reason of misconduct (drug abuse). It appears the applicant's generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. 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. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 13 September 2017, and by a 4-1 vote the Board determined that the discharge was improper. The evidence in the record confirms that the applicant was not referred to ASAP IAW AR 600-85. Therefore, the discharge being improper 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, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, Chapter 14-12a e. Change SPD/RE Code to: Change SPD to JKN / Change to RE code to 3 f. Restore Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160012829 1