1. Applicant's Name: a. Application Date: 6 December 2016 b. Date Received: 6 March 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in pertinent part and in effect, he was discharged in July 2011, for failing a urinalysis for marijuana in May 2010. Referring to AR 600-85, he was not notified of the positive test results within 30 days. He was not offered any drug rehabilitation for the use of illicit drugs. He was notified in July 2010 that he would be discharged from the Army, but that did not occur until July 2011. He was in limbo for a year, not knowing what was going to happen to his career. He was discharged 12 days past his original ETS date. He started smoking marijuana when he returned from Iraq in 2009. He did not know where to go for help, so he self- medicated with marijuana. It was the only thing to help him sleep and with the transition of returning home. He has since quit smoking, got his priorities straight, and completed college. The drug test was administered poorly, and the paperwork was mishandled from day one. He never received a final DD Form 214, but he received a letter stating he was reduced in rank, and discharged from the unit. Other Soldiers failing drug tests were receiving warnings or one reduction in rank, at the most. His reduction from to E-1 and discharge with an under other than honorable conditions were harsh punishments for a first time offense. Per the Board's Medical Officer, based on the information available for review at the time, the applicant showed no records of psychiatric diagnoses, other than Tobacco Use, in either AHLTA or the JLV. He has no VA SC disability percentage. This is not a mitigation case. In a records review conducted at Arlington, VA on 15 June 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, a prior period of honorable service, behavioral health issues 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: Abuse of Illegal Drugs /AR 135-178, Chapter 12-1d / NA / Other Than Honorable Conditions b. Date of Discharge: 26 July 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 8 July 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 July 2005 / 8-year MSO (USAR) b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10k, Motor Transport Operator / 6 years, 19 days d. Prior Service / Characterizations: USAR (8 July 2005 to 21 June 2006) / NA IADT (22 June 2006 to 22 November 2006) / HD USAR (23 November 2006 to 16 July 2008) / NA OIF AD (17July 2008 to 4 August 2009) / HD USAR (5 August 2009 - Continuous Service) e. Overseas Service / Combat Service: SWA / Kuwait/Iraq (7 September 2008 to 11 July 2009) f. Awards and Decorations: ARCOM; AGCM; NDSM; ICM-CS; GWOTSM; ASR; OSR; AFRM W/M DEV g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Discharge Orders i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: Online application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, he completed college. 7. REGULATORY CITATION(S): Army Regulation 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. 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. Further, chapter 13 provides in pertinent part, that individuals can be separated for being an unsatisfactory participant. Army Regulation 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills acrue during a 1 year period and attempts to have the Soldier respond or comply with orders or correspondence have resulted in- the Soldier's refusal to comply with orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. Discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities in accordance with the provisions of AR 135-91, paragraph 2-18, and Chapter 3, section IV, of AR 135-178. The characterization is based upon the quality of the Soldier's service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. Possible characterizations of service include an honorable, general, under honorable conditions, under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant's available record of service and the issues submitted with his application were carefully reviewed. The evidence shows the applicant's service record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army. The record indicates that on 20 July 2011, Department of the Army, Headquarters, 81st Regional Support Command, Fort Jackson, SC, Orders 11-201-00031, discharged the applicant from the US Army Reserve, effective 26 July 2011, with an under other than honorable conditions characterization of service, as approved by the separation authority's decision memorandum. 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 in the US Army Reserve. If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the complete discharge packet and any behavioral health diagnoses, since he claims having to self-medicate due to sleep issues upon his return from a deployment) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. The applicant contends that he was having issues upon his return from a deployment, so he self-medicated to help him sleep and transition home, which ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no the record of evidence that demonstrates that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. The applicant contends the discharge was unjust because according to AR 600-85, he was not notified of the positive test results within 30 days; he was not offered any drug rehabilitation for the use of illicit drugs; he was notified in July 2010, that he would be discharged from the Army, but that did not occur until July 2011; he was in limbo for a year, not knowing what was going to happen to his career; the drug test was administered poorly and the paperwork was mishandled; and he was discharged 12 days past his original ETS date (the record shows the applicant had an 8-year military service obligation, that ended on 7 July 2013). 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 his issues. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discharged. 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. Regarding the applicant's contention that he was not offered any drug rehabilitation for the use of illicit drugs. However, AR 135-178, paragraph 2-4d(3), 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, or that rehabilitation would not produce a quality Soldier desired by USAR. 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. In consideration of the applicant's in-service and post-service accomplishments, the Board can find that his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant contends he never received a final DD Form 214, but he received a letter stating he was reduced in rank, and discharged from the unit. However, for a discharge from the Reserve component, separation orders dictate the discharge; therefore, there is no DD Form 214, unless the applicant is discharged from an active duty assignment. In the applicant's case, he was discharged with discharge orders and the discharge authority was AR 135-178. The applicant contends other Soldiers failing drug tests were receiving warnings or one reduction in rank, at the most. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. The applicant contends being reduced to E-1 and discharged for the drug offense, an isolated incident, was too harsh. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. Based on the available 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 15 June 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, a prior period of honorable service, behavioral health issues 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. 10. BOARD ACTION DIRECTED: a. Issue a New Separation Order: 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 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 AR20170003195 6