1. APPLICANT’S NAME: a. Application Date: 9 July 2015 b. Date Received: 13 July 2015 c. Counsel: None 2. REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of his discharge from under other than honorable conditions to honorable and to change the narrative reason for his discharge. The applicant states, in pertinent part and in effect, the request for a change to his discharge is based on the inequity and impropriety of his entire administrative discharge proceedings that was not within the guidelines of the Army Regulations (AR 600-85) and he was treated unfairly. His first point is per AR 600-85, Chapter 4-18(b)(c), a Soldier whose urine had tested positive for illicit drugs may obtain a retest at any DOD FTDTL or at a commercial laboratory outside of the DOD laboratory system at the Soldier’s own expense. His request through his attorney for a retest of his urine sample was denied, although he was prepared to pay for the retest. The retest was to confirm he had never used illegal drugs, nor was he depended on any illegal drugs, and to show he was capable of continuing with his military service. While in the Army Reserve, he worked full-time as an armed security officer at a hospital, and holds the same employment currently. He was also a full-time student in college. He graduated in May 2015. While working at the hospital, it was mandatory for all employees to participate in random drug testing on a regular basis. His status as a full-time employee and student, including being a care provider for his elderly mother, are not indicative of a drug user. After carefully examining the applicant’s record of service during the period of enlistment under review, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant’s service, his post service accomplishments, hearing his testimony, and the circumstances surrounding the discharge, i.e., documentary evidence of inconsistency with the testing laboratory. Accordingly, in a Personal Appearance hearing conducted at Arlington, VA on 22 February 2016, and by a 5-0 vote, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. This action entails a change to the reentry eligibility (RE) code to 1, and restoration of grade to E-5. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: NA / AR 135-178 / NA / Under Other Than Honorable Conditions b. Date of Discharge: 14 November 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 April 2014 (2) Basis for Separation: The applicant was informed the reason for initiating action to separate him was due to abusing illegal drugs. (3) Recommended Characterization: Under Other Than Honorable Conditions discharge (4) Legal Consultation Date: 7 May 2014 (5) Administrative Separation Board: 18 October 2014, board recommended separation with Under Other Than Honorable Conditions characterization of service. (6) Separation Decision Date/Characterization: 6 November 2014 / Under Other Than Honorable Conditions discharge 4. SERVICE DETAILS: a. Date/Period of Enlistment: 16 July 2013 / 6 years b. Age at Enlistment/Education/GT Score: 38 / HS Graduate / 102 c. Highest Grade Achieved/MOS/Total Service: E-5 / 88M10, Motor Transport Operator / 15 years, 4 months, 9 days d. Prior Service/Characterizations:  (Prior service of 11 months, 16 days NIF, but per           USMC DD Form 214)           USMC (30 September 1998-22 October 2011) / HD e. Overseas Service/Combat Service: None f. Awards and Decorations: NMCOM; NMCAM-2; MCGCM-2; NDSM-2; GWOTSM; NUC-3 g. Performance Ratings: 16 July 2013-15 July 2014, Fully Capable h. Disciplinary Action(s)/Evidentiary Record: A positive urinalysis report for marijuana collected on 8 March 2014, as an IU (Inspection Unit) basis. Summarized report of the proceedings with findings and recommendations of an administrative separation board, dated 18 October 2014. Memorandum, dated 6 November 2014, subject: Legal Review of Board Proceedings [the applicant], provides a review and sequence of events leading up to the separation board findings and recommendations. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: An e-mail correspondence, dated 8 July 2014; extract copies of AR 600-85, pages 37 and 34; separation authority’s decision memorandum, dated 6 November 2014; discharge orders, dated 10 November 2014; Forensic DNA Testing with DNA Diagnostic Center article; character reference letter, dated 16 October 2014; Bachelor of Arts degree certificate; unofficial undergraduate transcript, dated 8 July 2015; and neurological clinic neurology consult, dated 23 June 2015. 6. POST SERVICE ACCOMPLISHMENTS: None. 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 ISSUE(S): The applicant requests an upgrade of the characterization of his discharge from under other than honorable conditions to honorable and to change the narrative reason for his discharge. The applicant’s record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms that 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. The applicant, as an NCO, 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 marred the quality of his service. The applicant seeks relief contending, his request is based on the inequity and impropriety of his entire administrative discharge proceedings that was not within the guidelines of the Army Regulations (AR 600-85) and he was treated unfairly. His first point is per AR 600-85, Chapter 4-18(b)(c), a Soldier whose urine had tested positive for illicit drugs may obtain a retest at any DOD FTDTL or at a commercial laboratory outside of the DOD laboratory system at the Soldier’s own expense. His request through his attorney for a retest was of his urine sample was denied, although he was prepared to pay for the retest. The retest was to confirm he had never used illegal drugs, nor was he depended on any illegal drugs, and to show he was capable of continuing with his military service. While in the Army Reserve, he worked full-time as an armed security officer at a hospital, and hold the same employment currently. He was also a full-time student in college. He graduated in May 2015. While working at the hospital, it was mandatory for all employees to participate in random drug testing on a regular basis. His status as a full-time employee and student, including being a care provider for his elderly mother, are not indicative of a drug user. The applicant contends his discharge proceedings were not within the guidelines of Army Regulations, specifically that his request for retest was denied. His contentions were carefully considered. 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 sufficient evidence to support the contention that he may have been unjustly discharged. Further, the evidence in the record indicates on 6 November 2014, the separation authority disapproved the attorney’s request on behalf of the applicant to suspend the administrative separation board’s recommendation to separate the applicant, pending the applicant’s ability to retest the urine sample, to submit his urine for DNA testing to verify whether the specimen in storage actually belonged to him, and for the applicant to be voluntarily evaluated for drug dependency. The administrative separation board made their findings and recommendations on 18 October 2014. The evidence further indicates on 8 July 2014, the applicant, through his counsel, in addition to being provided guidance on retesting, was also informed the lab they requested to conduct the retesting was not on the approved list of certified facilities and the request was denied, and that the separation proceedings would be scheduled for an August board without an additional delay, in compliance with command procedure. In consideration of the applicant's service accomplishments and quality of his service prior to the incident which led to his discharge, and his post-service accomplishments, the Board can find that his complete period of service, including his post-service accomplishments were not sufficiently mitigating to warrant an upgrade of his characterization of service or to change the narrative reason for his discharge. The applicant contends the reason for his discharge should be changed. However, the applicant’s current discharge orders provide no reason for his discharge, except the authority for his separation refers to AR 135-178 without a specific narrative reason. Army Regulation 135-178 is a regulation that establishes policies, standards, and procedures governing administrative separation of certain enlisted Soldier of the Army National Guard of the United States and the United States Army Reserve. There is no provision for any reason to be entered on the applicant’s discharge orders under this regulation. 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. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. USMC DD Form 214 – 1 page b. Laboratory testing – 3 pages 2. The applicant presented no additional contentions. 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. 9. BOARD ACTION DIRECTED: a. Issue a New Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change SPD/RE Code to: 1 e. Restore Grade to: E-5/SGT AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NIF - Not in File SPCM - Special Court Martial BCD - Bad Conduct Discharge HS - High School OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 HD - Honorable Discharge 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 IADT – Initial Active Duty Training RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable SCM - Summary Court Martial ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150011635 1