1. Applicant's Name: a. Application Date: 11 February 2020 b. Date Received: 19 March 2020 c. Counsel: 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, through counsel, an upgrade to honorable and a narrative reason change. The applicant's counsel also requests removal of any derogatory reference to drug use. The applicant's counsel seeks relief contending, in effect, the evidence submitted against the applicant does not meet the standard required for conviction under Article 112a, UCMJ; the destruction of the physical specimen before the separation proceedings took place was a deprivation of the applicant's constitutional rights; and the presence of the THC in the applicant's urine sample is likely the result of cross-contamination. b. Board Type and Decision: In a records review conducted on 22 March 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, post-service accomplishments, and one-time drug use - the accepted basis for separation. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. 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 135-178 / NIF / NIF / NIF / General (Under Honorable Conditions) b. Date of Discharge: 1 October 2019 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) Administrative Separation Board: On 10 June 2019, the Board determined to separate the applicant and recommended a general (under honorable conditions) characterization of service. The Board recommended the separation be suspended for a period of 12 months. (Board Results provided by the applicant's counsel) (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 February 2008 / 8 years (USAR) (Reenlistment contract is not on file) b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 129 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 11 years, 7 months, 24 days (taken from initial enlistment and separation date) d. Prior Service / Characterizations: RA, 26 April 2010 - 31 May 2011 / HD (Concurrent Service) RA, 20 April 2013 - 7 April 2014 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (12 June 2010 - 19 April 2011), (20 June 2013 - 29 January 2014) f. Awards and Decorations: ACM-CS-2, ARCOM, JSAM, AGCM, NDSM, GWOTSM, ASR, OSR, AFRM-M Device, g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Behavioral Health Condition(s): None 5. APPLICANT-PROVIDED EVIDENCE: Counsel's Brief with 6 enclosures (38 total pages) 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 135-178 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 based on 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. (1) Chapter 2, paragraph 2-7 prescribes 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. (2) Chapter 2, paragraph 2-8, prescribes 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. (3) 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. 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's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests, through counsel, an upgrade to honorable and a narrative reason change. The applicant's counsel also requests removal of any derogatory reference to drug use. The AMHRR is void of the complete facts and circumstances concerning the events which led to the applicant's discharge from the Army Reserve. The applicant's AMHRR does contain a properly constituted discharge order: Orders 19-26600009, dated 23 September 2019. The orders indicate the applicant was discharged under the provisions of AR 135-178, with a characterization of service of general (under honorable conditions). The applicant's counsel contends the evidence submitted against the applicant does not meet the standard required for conviction under Article 112a, UCMJ. The applicant's counsel contends the destruction of the physical specimen before the separation proceedings took place was a deprivation of the applicant's constitutional rights. The applicant's counsel contends the presence of the THC in the applicant's urine sample is likely the result of cross-contamination. The applicant's counsel requested removal of any derogatory reference to drug. Counsel's request does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. A DD Form 149 may also be obtained from a Veterans' Service Organization. If the applicant desires a personal appearance hearing, it is the applicant's responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) 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. 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? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnosis: combat related PTSD and Depressive Disorder. (2) Did the condition exist or experience occur during military service? Yes. the applicant was diagnosed with combat related PTSD and Depressive Disorder while in the Reserves. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration, but determined that while the medical condition typically mitigates substance use, the accepted basis for separation, the applicant denies use. Accordingly, the applicant is indicating there was no misconduct for consideration and the absence of separation file limits the medical mitigation potential. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's combat related PTSD and Depressive Disorder outweighed the accepted basis for applicant's separation - drug use - for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant's counsel contends the evidence submitted against the applicant does not meet the standard required for conviction under Article 112a, UCMJ. The Board considered the contention of an inequity of the discharge process, but ultimately did not address it due to an upgrade being warranted based on the applicant's length and quality of service, to include combat service, post-service accomplishments outweighing the one-time drug use - the accepted basis for separation. (2) The applicant's counsel contends the destruction of the physical specimen before the separation proceedings took place was a deprivation of the applicant's constitutional rights. The Board considered the contention of specimen destruction, but ultimately did not address it due to an upgrade being warranted based on the applicant's length and quality of service, to include combat service, post-service accomplishments outweighing the one-time drug use - the accepted basis for separation. (3) The applicant's counsel contends the presence of the THC in the applicant's urine sample is likely the result of cross-contamination. The Board considered the contention of cross- contamination, but ultimately did not address it due to an upgrade being warranted based on the applicant's length and quality of service, to include combat service, post-service accomplishments outweighing the one-time drug use - the accepted basis for separation. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, post-service accomplishments outweighing the one-time drug use - the accepted basis for separation. 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 the applicant's length and quality of service, to include combat service, post-service accomplishments outweighing the one-time drug use - the accepted basis for separation. Thus the prior characterization is no longer appropriate. (2) As there were no Reasons/SPD Codes/RE-codes listed on the applicant's discharge paperwork, due to being in the Army Reserves, no upgrade actions are required for these items. 10. BOARD ACTION DIRECTED: a. Issue a New Separation Order: Yes b. Change Characterization to: Honorable c. 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 AR20200007136 1