1. Applicant's Name: a. Application Date: 5 February 2018 b. Date Received: 9 February 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, he was involuntarily kept on active duty beyond his Expiration of Term of Service (ETS) date. Specifically, he was kept on active duty beyond his ETS date for the specific purposes of separating him from the military, which was in direct violation of Army Regulation. Because he was involuntarily kept on active duty beyond his ETS date so that he could be separated with a general discharge in violation of Army regulation, he should be awarded an honorable discharge, which characterization he would have received had he been discharged on his ETS date. Counsel further details the contentions in an allied legal brief provided with the application. In a records review conducted at Arlington, VA on 2 October 2020, 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 635- 200 / Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 1 September 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 August 2017 (2) Basis for Separation: The applicant was informed of the following reasons: he wrongfully used cocaine and were absent without leave for a period of three days. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 22 August 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 29 August 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 February 2014 / 3 years, 28 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 119 c. Highest Grade Achieved / MOS / Total Service: E-4 / 35S10, Signals Collector/ Analyst / 3 years, 6 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic Copy of DD Form 2624, dated 1 August 2017, reflects the applicant tested positive for COC 1958 (cocaine), during an Inspection Unit (IU) urinalysis testing, conducted on 7 July 2017. Report to Suspend Favorable Personal Actions (FLAG), dated 2 August 2017, reflects a FLAG was initiated against the applicant for involuntary separation/Discharge Initiated, effective 2 August 2017. Report to Suspend Favorable Personal Actions (FLAG), dated 2 August 2017, reflects a FLAG was initiated against the applicant for drug abuse adverse action, effective 2 August 2017. Recall from terminal leave (memo), dated 3 August 2017, reflects the applicant's company commander received a positive urinalysis result for the applicant on 2 August 2017. The results showed that the applicant tested positive for cocaine after the unit conducted a 100 percent urinalysis on 7July 2017. Based on the positive urinalysis, the commander recalled the applicant from terminal leave. At 1430 on 3 August 2017, the commander, 1SG G., and SFC B. used SFC B.'s cell phone to call the applicant. 1SG G. notified the applicant that his specimen from the 7 July 2017 urinalysis tested positive, and that he was being recalled from leave. The commander authorized the order to recall the applicant and ordered the applicant to be at Buckley AFB at 0900 on Monday, 7 August 2017. 1SG G. notified the applicant that if he was not present, the commander would report him Absent Without Leave (AWOL). The applicant verbally agreed to showing up at 0900 on 7 August 2017. Charge Sheet, dated 8 August 2017, reflects the applicant was charged with: violation of the UCMJ, Article 85, for without authority absent himself from his unit in desertion (8 August 2017); and, violation of the UCMJ, Article 86, for without authority absent himself from his unit (7 August 2017). Voiding DD Form 214 (memo), dated 9 August 2017, reflects the DD Form 214 (Certification of Release of Discharge From Active Duty) issued for the applicant be voided. The applicant was recalled from terminal leave on 7 August 2017 and was determined AWOL on 8 August 2017 per DA FORM 4187, dated 8 August 2017. Request the original DD Form 214 be destroyed by burning or shredding. Retention After Terms of Service Expiration (memo), dated 17 August 2017, reflects the applicant's battalion commander requested the applicant be extended on active duty beyond his ETS of 17 September 2017, to support ongoing UCMJ and chapter separation actions. The battalion was concurrently working with the 704th MI BDE Career Counselor to adjust applicant's ETS by an additional four (4) days to account for time lost while absent without leave from 8 August 2017 to 11 August 2017. FG Article 15, dated 21 August 2017, for wrongfully using cocaine (between 2 and 7 July 2017); and, for being AWOL (between 8 and 10 August 2017). The punishment consisted of a reduction to E-1; forfeiture of $799 pay (suspended); and, extra duty and restriction for 45 days. Report of Mental Status Evaluation, dated 21 August 2017, reflects the applicant was command referred for a behavioral health evaluation. The applicant did not have any mental health diagnoses and could participate in the proceedings. Six Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 7 August 2017 From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 8 August 2017; From "AWOL" to "Dropped From Rolls (DFR)," effective 8 August 2017; From "DFR" to "PDY," effective 11 August 2017; From "PDY," to "Confined by Civil Authorities (CCA)," effective 11 August 2017; and, From "CCA," to "PDY," effective 16 August 2017. i. Lost Time / Mode of Return: 10 days: AWOL, 7 August 2017 - 8 August 2017 / Apprehended by Civil Authorities DFR, 9 August 2017 - 11 August 2017 / Apprehended by Civil Authorities CCA, 12 August 2017 - 16 August 2017 / Returned to Military Control j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; case separation file; Enlisted Record Brief; DD Form 4. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 1-21, establishes that time lost will be made good. Every Soldier in active Federal service who is unable for more than 1 day to perform duty will complete the full term of service or obligation, exclusive of such time lost. The term will be served when the Soldier returns to full duty status. Lost time refers to periods of more than 1 day when a Soldier on active duty cannot perform duty because of: Desertion; Absence without proper authority; Confinement under sentence; Confinement while awaiting trial or disposition of Soldier's case, if trial results in conviction; Intemperate use of drugs or alcohol; and, Disease or injury, the result of Soldier's misconduct. Time lost during an enlistment period will be made good at the end of the enlistment period. When an enlistment is extended by law, time lost will be made good at the end of the extension. Paragraph1-22, stipulates when investigation is initiated with view to trial by court-martial or Soldier is awaiting trial or result of trial a Soldier may be retained after his/her term of service has expired when one of the following applies: An investigation of his/her conduct has been started with a view to trial by court-martial; Charges have been preferred; and, The Soldier has been apprehended, arrested, confined, or otherwise restricted by the appropriate military authority. If charges have not been preferred, the Soldier will not be retained more than 30 days beyond the ETS unless the general court-martial convening authority approves retention. A Soldier who is awaiting trial or result of trial by court-martial when he/she would otherwise be eligible for discharge or release from AD will not be discharged or released until final disposition of the court-martial charges. Paragraph 1-26, governs retention for miscellaneous reasons and stipulates retention beyond a Soldier's ETS to process administrative separation proceedings pursuant to this regulation is not authorized. If it is desirable to retain a Soldier beyond the ETS for any reason other than those covered by paragraphs 1-21 through 1-24, request for approval of such action must be submitted to Headquarters, Department of the Army. 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(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a or 14-12b as appropriate. 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. 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 marred the quality of his service. 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 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 contends he was kept on active duty beyond his ETS date for the specific purposes of separating him from the military, which was in direct violation of Army regulation. However, 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 2 October 2020, 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 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 AR20180003261 1