1. Applicant's Name: a. Application Date: 8 December 2016 b. Date Received: 12 December 2016 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). The applicant seeks relief contending, in effect, that it is inequitable for him to continue to suffer the adverse consequences of a less than honorable discharge. The applicant contends that the official recommendation of the administrative separation board was that his separation should be suspended and that he was a highly deserving Soldier. He was recommended to be placed on probation for a period of 12 months. He was never placed on probation as recommended, and instead separated without being allowed an opportunity to show rehabilitation. He believes clemency is warranted in his case because the decision to separate him was too harsh given his prior plea for assistance with his drug use and his otherwise exemplary service record. He successfully completed the North Carolina Deferred Prosecution program connected with the possession of cocaine charge and would have successfully completed the recommended probation. Evidence of record shows the applicant had a prior records review on 6 December 2010. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had AHLTA diagnoses of Adjustment Disorder with Depressed Mood, Adjustment Disorder with Disturbance of Emotions and Conduct, Alcohol Dependence with Continuous Drinking Behavior, Anxiety Disorder NOS< Cannabis Abuse, Episodic Cocaine Abuse, Neurasthenia, and Nicotine Dependence. AHLTA records showed a note on 112 March 2009, with the provider writing the applicant had been referred from "Dr. Rodriguez" after a suicide attempt, which the provider viewed as driven by stress, including the applicant's arrest on substance -related criminal charges. In a note of 09 June 2009, a provider noted a dirty urine in 2007 and subsequent completion of ASAP. It also said he attempted suicide in February 2009 by overdose. He had a Separation MSE on 24 July 2009, though it only indicated the applicant was to be discharged within 72 hours, and did not include a 3822. The JLV showed a VA SC rating of 60%. His VA Problem List included Obstructive Sleep Apnea, PTSD, and Anxiety. Two factors block mitigation of this case. First, he was distributing drug, not just using them, per the records. Second, the medical records showed his involvement with illicit drugs continued after his completion of ASAP. In a personal appearance hearing conducted at Arlington, VA on 26 January 2018, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post service accomplishments and the circumstances surrounding the discharge (i.e. post-service diagnosis of OBH and PTSD with a 30% service connected disability rating by the VA and refusal of access to ASAP by chain-of-command), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general (under honorable conditions). The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 24 July 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 March 2008 (2) Basis for Separation: The applicant was informed of the following reasons: wrongfully use marijuana, a controlled substance between 17 September 2007 and 16 October 2007; was placed in civilian confinement for possession and intent to distribute cocaine between 12 November 2007 and 26 November 2007; and pleaded guilty to the civilian charge of possession of cocaine in the state of North Carolina and being placed on probation for a period of one year. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 18 March 2008, the applicant voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service no less favorable than general (under honorable conditions) and intended to submit a statement on his own behalf. On 10 March 2009, the separation authority denied the applicant's conditional waiver request and referred his case to the administrative separation board. The applicant was then notified to appear before an administrative separation board and advised of his rights. (5) Administrative Separation Board: On 9 April 2009, the board convened and after carefully considering the evidence before it determined that the allegation of wrongful use of marijuana, a controlled substance, between 17 September 2007 and 16 October 2007, his being placed in civilian confinement for possession and intent to distribute cocaine between 12 November 2007 and 26 November 2007, and his pleading guilty to the civilian charge of possession of cocaine in the state of North Carolina and that he was placed on probation for a period of one years in the notice of proposed separation were support by a preponderance of the evidence. In view of the findings the board recommended the applicant be separated with a characterization of service of under other than honorable conditions. However, it was noted that the applicant was a highly deserving Soldier whose separation should be suspended and who should be given a probationary period, not to exceed 12 months, to show successful rehabilitation before his enlistment or obligated service expired, UP AR 635-200, paragraph 1-16. (6) Separation Decision Date / Characterization: 20 May 2009 / Under Other Than Honorable Conditions. (Evidence in the record shows the separation authority after considering the board's findings and recommendation and the chain of command's recommendations directed that the applicant be discharged with this characterization of service) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 January 2007 / 3 years b. Age at Enlistment / Education / GT Score: 27 / GED / 87 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 12 years, 11 months, 2 days d. Prior Service / Characterizations: ARNG, 22 August 1996 to 19 November 1996 / NA ADT, 20 November 1996 to 21 March 1997 / UNC ARNG, 22 March 1997 to 30 November 2001 / GD USARCG, 1 December 2001 to 25 April 2004 /HD RA, 26 April 2004 to 18 January 2007 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (27 October 2004 to 4 October 2005) f. Awards and Decorations: ARCOM, AAM, NDSM, GWOTEM, GWOTSM, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: There is a positive urinalysis report contained in the record coded IR, (Inspection Random), that shows the applicant tested positive for THC 19 on 16 October 2007. FG Article 15, dated 10 December 2007, for wrongfully using marijuana between 17 September 2007 and 16 October 2007. The punishment consisted reduction to E-2, forfeiture of $729 pay per month for two months (suspended), and 45 days extra duty and restriction. Army Substance Abuse Program (ASAP) Enrollment form shows the applicant was command referred for increased defensiveness and intolerant of co-workers or subordinates. Memorandum dated 25 March 2008, from the Clinical Director, ASAP Fort Eustis, VA, makes reference to the applicant having been a patient in ASAP since 6 December 2008. He had the diagnosis of Rule out Alcohol dependency, Cocaine Abuse and Cannabis Abuse. At the initial session he was recommended to and scheduled for intake at Dominion Psychiatric Associates. It was recommended that he totally abstain from alcohol and drug use. Memorandum dated 30 March 2009, from the Clinical Director, ASAP Fort Eustis, VA, makes reference to the applicant having disclosed that he had self-reported drug use to his 1SG in October 2007, and requested access to care; however the applicant reported that he was told that services were not available at Fort Story. CID Report, dated 5 February 2008, which shows the applicant was the subject of investigation for wrongful possession of marijuana and wrongful possession of cocaine w/intent to distribute. Report of Mental Status Evaluation, dated 9 June 2009, shows the applicant had the mental capacity to understand participate in the proceedings and was mentally responsible. It was noted that he was responsible for his behavior, had the ability to distinguish right from wrong and possessed sufficient mental capacity to participate in administrative proceedings. The applicant received several negative counseling statements for various acts of misconduct and performance counseling i. Lost Time / Mode of Return: Confinement civilian authorities 15 days (12 November 2007 to 26 November 2007) j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; finding and recommendation memorandum from his administrative separation board; deferred prosecution from the state of North Carolina/court documents reference his charge for possession of cocaine; transcript from Elizabeth City State University and Full Sail University. 6. POST SERVICE ACCOMPLISHMENTS: Evidence submitted by the applicant shows he was awarded a Bachelor of Science and Master of Science. 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 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 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). 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 a general (under honorable conditions) 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 it is inequitable for him to continue to suffer the adverse consequences of a less than honorable discharge. The applicant contends that the official recommendation of the administrative separation board was that his separation should be suspended and that he was a highly deserving Soldier. He was recommended to be placed on probation for a period of 12 months. He was never place on probation as recommended, and instead separated without being allowed an opportunity to show rehabilitation. He believes clemency was warranted in his case because the separation decision was too harsh given his prior plea for assistance with his drug use and his otherwise exemplary service record. He successfully completed the North Carolina Deferred Prosecution program connected with the possession of cocaine charge and would have successfully completed the recommended probation. The applicant's contentions were noted; evidence in the record shows the administrative separation board did recommend that the applicant be placed on probation for a period of 12 months; however, as noted in the separation packet, the separation authority was not bound by the recommendation of administrative separation board. Therefore, after considering the boards finding and recommendation and the chain of command's recommendation the separation authority direct that the applicant be separation from the serviced under the provision of AR 635-200, Chapter 14, paragraph 14-12c, with a characterization of under other than honorable conditions. 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 it is inequitable for him to continue to suffer the adverse consequences of a less than honorable discharge. In fact, the applicant's positive drug test, Article 15 and numerous negative counseling statements justify his discharge. The applicant's statements alone do 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. He believes clemency was warranted in his case because the separation decision was too harsh given his prior plea for assistance with his drug use and his otherwise exemplary service record. The record is void of any evidence which shows the applicant plead for assistance for his drug use prior to testing positive. 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. 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): No additional documents submitted. b. The applicant presented the following additional contention(s): Change the narrative reason to Misconduct (Minor offenses) (sic). Change the reentry eligibility (RE) code. Change the authority of the discharge. c. Witness(es) / Observer(s): Jacob Jagta (battle Buddy and mentor) (W) 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 26 January 2018, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post service accomplishments and the circumstances surrounding the discharge (i.e. post- service diagnosis of OBH and PTSD with a 30% service connected disability rating by the VA and refusal of access to ASAP by chain-of-command), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general (under honorable conditions). The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD/RE Code to: No Change f. Restore (Restoration of) 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 AR20170000724 5