1. Applicant’s Name: a. Application Date: 24 September 2019 b. Date Received: 2 October 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, an upgrade of the discharge would be for the purpose of being able to reenlist. The applicant contends the discharge was for failing one urinalysis for THC; the applicant is aware of others that were retained and given some other punishment less than separation for the same offense. For this reason, the applicant believes the determination to discharge the applicant to be unjust and would like the determination to be review and rectified. b. Board Type and Decision: In a records review conducted on 12 October 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: NIF / AR 135-175, Chapter 2, paragraph 2-12 / NIF / NIF / NIF / General (Under Honorable Conditions) b. Date of Discharge: 1 May 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Board of Officers: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Appointment: 18 August 2005 / 8 years b. Age at Appointment / Education / GT Score: 19 / HS Graduate / NA c. Highest Grade Achieved / MOS / Total Service: O-2 / 70H, Health Services / 7 years, 8 months, 14 days d. Prior Service / Characterizations: ARNG, 18 August 2005 to 28 September 2007 / GD (It should be noted this period of service was noted by a NGB Form 22 in the applicant’s AMHRR dated 28 September 2007) (A second NGB 22 along with Army National Guard Retirement Points History Statement’s and DD Form 214 refers to the following). ARNG, 18 August 2005 to 18 April 2006 / NA ARNG (Cadet), 19 April 2006 to 12 August 2007/ NA Appointed 2LT/ARNG, 13 August 2007 ARNG, 13 August 2007 to 3 August 2008 / NA ADT, 3 August 2008 to 6 October 2008 / HD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCAM, NDSM, ASR g. Performance Ratings: 13 August 2008 to 12 August 2009, Fully Qualified 13 August 2009 to 12 August 2010, Best Qualified 13 August 2010 to 12 August 2011, Best Qualified 13 August 2011 to 12 August 2012, Fully Qualified h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: NA j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 149 and a letter from The Honorable J.D.M., Member of Congress. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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 135-175, Separation of Officers, provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the United States and the U.S. Army Reserve, except for officers serving on active duty or active duty for training exceeding 90 days. (1) Paragraph 2-1 prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when their retention is not in the best interest of the service. Section II states the retention of officers substandard in performance of duty or conduct, deficient in character, or otherwise unsuited for military service cannot be justified in time of peace or war. The same standards of efficiency and conduct apply to all officers, regardless of component. (2) Paragraph 2-10, prescribes that unless successfully rebutted, authorizes involuntary separation of an officer due to substandard performance of duty. Officers discharged under this provision will be furnished an Honorable Discharge Certificate. (3) (Paragraph 2-11, prescribes that unless successfully rebutted, authorizes involuntary separation of an officer due to moral or professional dereliction. Officers discharged under this provision will be furnished an honorable or general discharge certificate, or other than honorable conditions discharge. 8. SUMMARY 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. The applicant’s available 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 the discharge from the Army National Guard of New York and as a Reserve of the Army. The applicant’s AMHRR 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 635- 100, paragraph 5,6, and 7 / AR 135-175, Chapter 2, paragraph 2-12, with a characterization of service of general (under honorable conditions). The AMHRR also contains a properly constituted discharge Order 105-1008, dated 15 April 2013. The applicant seeks relief contending, in effect, an upgrade of the discharge would be for the purpose of being able to reenlist. The applicant contends the discharge was for failing one urinalysis for THC; the applicant is aware of others that were retained and given some other punishment less than separation for the same offense. For this reason, the applicant believes the determination to discharge the applicant to be unjust and would like the determination to be review and rectified. The applicant’s contentions were noted; however, the merit of these contentions cannot be established because the facts and circumstances leading to the discharge are unknown. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will be the applicant’s responsibility to meet this burden of proof since the discharge packet is not available in the official record. It should also be noted, based on the applicant’s contention of having been discharged for failing one urinalysis for THC, the applicant, as a commissioned officer, 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 service. 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 of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (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 Contentions: (1) The applicant seeks relief contending a discharge upgrade for the purpose of reenlisting. The Board considered this contention and determined that there was limited information found in the official records. The Board questioned whether a onetime drug use was the only basis of separation. Due to lack of information, panel members denied the current discharge upgrade request. (2) The applicant contends the discharge was for failing one urinalysis for THC; the applicant is aware of others that were retained and given some other punishment less than separation for the same offense. The Board voted after considering the contention and found no evidence of the command acting in an arbitrary or capricious manner. Specifically, the Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board as the merit of this contention cannot be determined with the information provided. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant had no BH diagnoses found in the records which would excuse or mitigate the unknown basis for separation. The discharge is presumed consistent with the procedural and substantive requirements of the regulation, within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code because, under the same pretexts, as the reason the applicant was discharged was presumed both proper and equitable. (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 DD-214 / Separation Order: No Change b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. Change RE Code to: No Change e. 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 AR20190012653 1