1. Applicant's Name: a. Application Date: 30 June 2019 b. Date Received: 11 July 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general, under honorable conditions. The applicant requests an upgrade to honorable, narrative reason and a reentry eligibility (RE) code change. The applicant seeks relief contending, in effect, when notified that he tested positive he immediately went to a counselor to start rehabilitation. He was not notified of his pending discharge. He also read that most Soldiers ranked E-4 and below are usually not discharged on first time testing positive. He was not given a chance to defend himself. He has successfully paid all debts to DFAS, over $20,000 back and has changed his life around. In a records review conducted on 25 August 2021, and by a 3 - 2 vote, the Board determined that the characterization of service was inequitable based on the applicant's time since separation, post-service accomplishments, and absence of other misconduct. Therefore, the Board voted to recommend relief with issuance of a new NGB Form 22a, with an upgrade of the characterization of service to Honorable. The Board's recommendation was forwarded to the Chief, National Guard Bureau, Kentucky Military Department, to the Adjutant General, State of Kentucky, under the provisions of 10 USC § 1553, for final approval. The Board determined the narrative reason, SPD code and RE were proper and equitable and voted not to change them. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Alcohol or other substance abuse rehabilitation failure / NGR 600-200, Paragraph 6-35(h) / NA / RE-3 / General (Under Honorable Condition) b. Date of Discharge: 7 June 2010 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: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 July 2007 / 8 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 10 months, 24 days d. Prior Service / Characterizations: IADT, 4 September 2007 - 13 December 2007 / HD e. Overseas Service / Combat Service: Japan / None f. Awards and Decorations: NDSM, ASR, ARCOTR, KY SADR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Discharge Orders 156-842, dated 5 June 2010, reflects the applicant would be discharged with general discharge, effective 7 June 2010, under the authority of NGR 600-200, paragraph 6-35h. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; National Emergency Medical Technician Certification; Commonwealth of Kentucky EMT card; American Heart Association CPR & AED card. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided evidence he completed the National Emergency Medical Technician Certification, Commonwealth of Kentucky EMT course, and the American Heart Association CPR & AED course. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides 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), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides 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, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification 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. (2) 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. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills accrue during a one-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. e. Army Regulation 135-178 prescribes 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 of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. Paragraph 2-9a prescribes an honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. (1) Paragraph 2-9b, prescribes, if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. (2) Chapter 3-23 (Section IV), states, if separation proceedings under this chapter have been initiated against a Soldier confined by civil authorities, the case may be processed in the absence of the respondent. (3) Chapter 11, in affect at the time, provides in pertinent part, initiation of discharge proceedings is required in the case of a Soldier who has been referred to a program of rehabilitation for personal substance abuse under the provisions of AR 600-85 and who fails through inability or refusal to participate in, cooperate in, or successfully complete the program in the following circumstances: (1) There is a lack of potential for continued military service; or (2) Long-term rehabilitation in a civilian medical facility is determined necessary. A Soldier may be discharged when the commander, in consultation with an Army Substance Abuse Program official (AR 600-85), determines that further rehabilitation efforts are not practical, rendering the Soldier a rehabilitation failure, and discharge is in the best interest of the Army. Nothing in this chapter precludes discharge of a Soldier who has been referred to such a program under any other provision of this regulation in appropriate cases. (4) Paragraph 11-2, Characterization of service when a Soldier is discharged under this chapter, characterization of service as honorable or general (under honorable conditions) is authorized except when service is uncharacterized for Soldiers in entry level status. f. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and, Command Sergeant Major Program. (1) Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. (2) Paragraph 6-25, prescribes the discharge of Soldiers on active duty, (Title 10, USC) in AGR, IET, ADT, and ADOS status, as well as those ordered to active duty for contingency operations or under mobilization conditions, is governed by AR 635-200. All Outside Continental United States (OCONUS) training, including AT is conducted in Title 10 ADT status. Refer to AR 135-178 when considering enlisted Soldiers not on active duty and those on full-time National Guard duty (FTNGD) under Title 32 USC for discharge from the ARNG and as a Reserve of the Army. Paragraph 6-35h defers to AR 135-178, chapter 11 and AR 600-85, chapter 12 for discharge for alcohol or other substance abuse rehabilitation failure. Soldiers must request that treatment personnel provide monthly updates in writing to unit commanders, documenting satisfactory participation in a rehabilitation program. This requirement will continue until a closing document of successful completion is provided. Initiation of discharge proceedings is required for Soldiers who have been referred to a program of rehabilitation within 90 days of notification. Administrative separation board procedures per paragraph 6-32 are required. RE 3 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable, a narrative reason and RE code change. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. The applicant's record does contain a properly constituted NGB Form 22 (Report of Separation and Record of Service), which reflects the applicant was not available for signature. The NGB Form 22, indicates the applicant was discharged under the provisions of NGR 600-200, Paragraph 6-35h, by reason of alcohol or other substance abuse rehabilitation failure, with a characterization of service of General (Under Honorable Conditions). The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 6-35h, NGR 600-200, with a General (Under Honorable Conditions) discharge. The narrative reason specified by NGR 600-200, for a discharge under this paragraph is "Alcohol or other substance abuse rehabilitation failure." Governing regulations stipulate that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The regulation stipulates a RE-3 will be assigned. The applicant contends when notified he tested positive he immediately went to a counselor to start rehabilitation. Army Regulation 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The applicant contends he was not notified of his pending discharge. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends other Soldiers with similar offenses were not discharged. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on NGR 600-200, Paragraph 6-35h the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends he has turned his life around. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. The Board's Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony that, when applying liberal consideration, convinced the Board of a possible mitigating BH condition. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. While the Board voted to upgrade the characterization, the reason for discharge, Alcohol or other substance abuse rehabilitation failure, is proper and equitable due to the absence of the separation file holding the complete facts and circumstances surrounding the discharge. (2) The applicant contends when notified he tested positive he immediately went to a counselor to start rehabilitation. The Board considered this contention during the board. (3) The applicant contends he was not notified of his pending discharge. The Board could not consider the merit of this contention without the separation packet. (4) The applicant contends other Soldiers with similar offenses were not discharged. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. Without the separation file containing the complete facts and circumstances surrounding the discharge, the Board cannot fully analyze the applicant's service contentions. (5) The applicant contends he desires to rejoin the Military Service. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. (6) The applicant contends he has turned his life around. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. c. The Board determined that the characterization of service was inequitable based on the applicant's length of service, post service accomplishments, and absence of other misconduct. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. d. Rationale for Decision: (1) The board voted to change the applicant's characterization of service to Honorable because of the applicant's length of service, post service accomplishments, and absence of other misconduct. Thus the prior characterization is no longer appropriate. KY NG is the final approving authority for this action. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code as the reason the applicant was discharged was both proper and equitable, and the complete facts and circumstances surrounding the discharge, due to the absence of the separation packet, are unknown. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New Separation Order: Yes b. Change Characterization to: Honorable c. Change RE Code to: No Change d. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190010248 7