1. Applicant’s Name: a. Application Date: 1 June 2015 b. Date Received: 5 June 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, his discharge was unjust and unfair. The applicant contends that he completed and requested counsel within the 30 day period to submit his Election of Rights and to waive his right to a board in exchange for a general discharge. The applicant’s defense counsel was unavailable due to a detail and travel, leaving the applicant without counsel. Due to his Reservist status, the applicant states that he could not access the Trial Defense Services (TDS) office for consultation and advisement. He wanted to submit documentation for a rehabilitation program to TDS but couldn’t, so he submitted the documentation upon arrival to his next duty. It was then that he was informed he had been discharged. Due to the extenuating circumstances beyond his control, the applicant requests a review of his case. In a records review conducted at Arlington, VA on 19 August 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Misconduct (Drug Abuse) / AR 135-178, Paragraph 12-1d / NIF / NIF / Under Other Than Honorable Conditions b. Date of Discharge: 13 February 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 December 2011 (2) Basis for Separation: The applicant tested positive for the use of illegal drugs (THC) on two occasions (16 October 2011 and 6 November 2011). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: N/A (6) Separation Decision Date/Characterization: 5 February 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 12 January 2011 / 8 years b. Age at Enlistment/Education/GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved/MOS/Total Service: E-3 / 88H10, Cargo Specialist / 1 year, 1 month, and 2 days d. Prior Service/Characterizations: USAR, 12 January 2011 – 24 April 2011 / NA ADT, 25 April 2011 – 1 September 2011 / HD (Concurrent Service) e. Overseas Service/Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s)/Evidentiary Record: Electronic copy of the DD Form 2624, dated 23 October 2011, reflects the applicant tested positive for marijuana during an Inspection Unit (IU) urinalysis testing conducted on 16 October 2011. Electronic copy of the DD Form 2624, dated 21 November 2011, reflects the applicant tested positive for marijuana during an Inspection Random (IR) urinalysis testing conducted on 6 November 2011. DA Form 4856 (Developmental Counseling), dated 12 December 2011, for testing positive for THC on 16 October 2011 and 6 November 2011. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: Online application, dated 1 June 2015; DD Form 214; email correspondence, dated between 11 January 2012 and 8 February 2012; express mail receipt, dated 2 February 2012; and demographic/screen form, dated 22 February 2012. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. Chapter 12 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, and convictions by civil authorities. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions and a change to the narrative reason for separation. 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 his service below that meriting an honorable or general (under honorable condition) discharge. Therefore, the applicant was discharged under the provisions of Army Regulation 135-178, Chapter 12, and paragraph 12-1 d, abuse of illegal drugs as appropriate. 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. The applicant contends that his discharge was unjust and unfair because he completed and requested counsel within the 30 day period. Due to extenuating circumstances beyond his control, he did not have legal representation. However, 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 unjustly discharged. Evidence in the record shows that on 12 December 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, AR 135-178, by reason of abuse of illegal drugs for testing positive for THC twice with an under other than honorable conditions discharge. He was advised of his rights via certified mail to his last known address. The applicant’s Election of Rights is not contained in the available record. However, the unit commander indicated in the notification letter that he was suspending the separation action for 45 days, to allow the applicant with the opportunity to exercise his right to consult with legal counsel. As a result of the applicant not providing a response to the memorandum of notification, the unit commander recommended separation from the Army Reserve (USAR) on 25 January 2012. 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 19 August 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214/Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore (Restoration of) Grade to: No Change AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NA - Not applicable 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 OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police – PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status MST – Military Sexual Trauma RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150009192 3