1. Applicant's Name: a. Application Date: 8 June 2017 b. Date Received: 28 June 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable. The applicant seeks relief contending, in effect, the discharge was improper due to the error in discretion in granting an under other than honorable although commanding officers recommended retention. The separation was inequitable based on an exemplary service history and lack of consideration of the applicant's capability to serve due to marital and personal issues. The applicant proactively self-enrolled in a rehabilitation program prior to the failed urinalysis, completing the program in full. In a records review conducted at Arlington, VA on 20 March 2019, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of a biochemical test after the applicant self-enrolled into a drug rehabilitation program. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, 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 (Abuse of Illegal Drugs) / AR 135-178, Paragraph 12-1d / NA / NA / Under Other Than Honorable Conditions b. Date of Discharge: 15 October 2010 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 29 October 2009 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; he tested positive for using illegal drugs. (3) Recommended Characterization: On 29 October 2009, the unit commander recommended a General (Under Honorable Conditions) discharge. On 16 March 2010, the unit commander recommended that the applicant be retained in the US Army Reserve with an administrative reduction to Sergeant, E-5. (4) Legal Consultation Date: 11 November 2009 (5) Administrative Separation Board: On 10 August 2010, the applicant was notified to appear before an administrative separation board. However, the board proceedings are not contained in the available record. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 March 2009 / to complete military service obligation 24 October 2010 / USAR b. Age at Enlistment / Education / GT Score: 23 years / GED Certificate / 114 c. Highest Grade Achieved / MOS / Total Service: E-6 / Indirect Fire Infantryman / 7 years, 7 months, 28 days d. Prior Service / Characterizations: RA, 18 February 2003 to 19 March 2006 / HD RA, 20 March 2006 to 19 March 2009 / HD e. Overseas Service / Combat Service: Korea f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, GWOTSM, KDSM, NOPDR, ASR, OSR, EIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: The applicant received numerous monthly counseling statements counseling statements; and a negative counseling for testing positive for THC. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Chronological Record of Medical Care, dated 12 September 2009, relates the applicant had mild to moderate depressive symptoms and chest pains. . 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney engagement letter (two pages); attorney's memorandum in support of application for discharge upgrade (seven pages); Exhibit 1, DD Form 214; Exhibit 2, applicant's letter (two pages); Exhibits 3 ,11 and 19, Certificate of Training; Exhibit 4, Certificate of Achievement, Exhibit 5, Certificate of Quality, Exhibit 6, Certificate of Army Achievement Medal; Exhibit 7, Certificate of The Order of the Spur; Exhibit 8, Letter of Recognition; Exhibit 9, Squadron Certificate of Achievement, Exhibit 10, Advancement to Specialist; Exhibit 12, Award of Expert Infantry Badge; Exhibit 13, Appointment from Specialist to Corporal; Exhibit 14, Promotion to Sergeant; Exhibit 15, Letter of Commendation; Exhibits 16 and 17, Certificates of Completion; Exhibit 18, Award of AGCM; Exhibit 20; Promotion to Staff Sergeant; Exhibit 21, Certificate of Army Achievement Medal; Exhibits 22 and 23, Recommendations for Army Commendation Medal (1 OLC and 2 OLC); Exhibit 24, Transfer to Reserve, Obligation Termination; Exhibit 25, Developmental Counseling Form; Exhibit 26, Notification of Separation Proceedings; Exhibit 27, Letter from S.L., Therapist; Exhibit 28, Notification of Separation Proceedings, Election of Rights; Exhibit 29 and 31, CPT C., Recommendations for Retention; Exhibit 30, Reduction to Sergeant; Exhibit 32, First Sergeant B.'s Recommendation for Retention; Exhibit 33, Discharge decision; Exhibit 34, Letter from First Sergeant, J.R.F.; Exhibit 35, Letter from Battle Buddy, R.G. and Exhibit 36, Letter from J.N.P., Postmaster and Direct Supervisor of Applicant. 6. POST SERVICE ACCOMPLISHMENTS: The applicant submitted a document with his application that indicates he is employed with Wilmington Post Office for more than three years. 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. 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 an upgrade of the characterization of service from under other than honorable conditions to honorable. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The record shows the government introduced into the discharge packet a March 2010 commander's report that includes protected limited use evidence. Section #4 of the letter indicates that the applicant was a rehabilitation failure, had sought and was in treatment prior to his positive drug test for THC. The weight of the evidence indicates that the applicant did self- refer into treatment prior to his positive test. A VA form dated 7 July 2009 reflects a consent to participate in a substance abuse program. A letter from the applicant's private treatment provider (enclosed in the commander's report) indicates that the applicant was initially assessed 10 days prior to his positive urinalysis (on 29 July 2009). In March 2010 statements, the applicant's 1SG and unit commander both endorsed that the applicant self-identified and enrolled into treatment prior to his positive drug test and that it was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan. This is limited use information as defined in AR 600-85 and is protected evidence because the test was administered as part of the applicant's rehabilitation program. Use of this information mandates award of an honorable characterization of service. The discharge was not consistent with the procedural and substantive requirements of the regulation, was not within the discretion of the separation authority, and the applicant was not provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 20 March 2019, and by a 5-0 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the results of a biochemical test after the applicant self-enrolled into a drug rehabilitation program. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, 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 DD-214: Yes b. Change Characterization to: Honorable 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 AR20170010829 1