1. Applicant's Name: a. Application Date: 12 March 2020 b. Date Received: 14 April 2020 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 conditions, a narrative reason change, a separation code change, and a reentry code change. The applicant seeks relief contending, in effect, In the three-year enlistment contact, the applicant regrettably used and tested positive for marijuana. The one-time incident occurred when the applicant was immature and had not realized its impact and the negative affect on the unit, a failure to self, brotherhood, and country. The applicant understands and accepts responsibility for the actions. When confronted with the incident at a drill, the applicant did not resort to blaming or denying the actions, knowing it was wrong and accepted it. The applicant was distraught about the consequences of being discharged from the National Guard. In the three years of Guard duty, the applicant learned about loyalty, duty, respect, selfless service, honor, integrity, and personal courage. The applicant was always at the top for PT tests, excelling at everything, and always had a good attitude. The applicant was excited to serve and ensured giving 110 percent. It took eight years to accept the guilt. It was a wakeup call causing to made necessary changed to right the wrongs and had not used any illegal drugs since. The applicant is employed with General Mills, an employment which conducts random tests for alcohol and drugs. The applicant was discharged just one day short of completing the three-year enlistment. The applicant would like a second opportunity to proudly serve the country again as the applicant has a strong work ethic and a determination to finish a career in the Guards. The applicant desires to reenlist. The applicant further details the contentions in an allied self-authored statement provided with the application. 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 of service, prior period of honorable service, one-time drug use, and time elapsed since misconduct. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. The Board determined the narrative reason and RE code were proper and equitable and voted not to change them. The Board's recommendation was forwarded to the Chief, National Guard Bureau, Wisconsin Military Department, to the Adjutant General, State of Wisconsin, under the provisions of 10 USC § 1553, for final approval. 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: Acts or Patterns of Misconduct under the UCMJ, State Military Code, or Similar Law / NGR 600-200, Paragraph 6-35i(1) / NA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 31 January 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 January 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant had a positive urinalysis containing the illegal substance, Marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 February 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 5 January 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 February 2010 / 8-year MSO (with a confirmation of enlistment in the Wisconsin Army National Guard for 3 years) b. Age at Enlistment / Education / GT Score: 20 / some college / 90 c. Highest Grade Achieved / MOS / Total Service: E-3 / 21B1P, Combat Engineer / 2 years, 11 months, 29 days d. Prior Service / Characterizations: ARNG, 2 February 2010 - 22 February 2010 / NA IADT, 23 February 2010 - 11 June 2010 / HD ARNG, 12 June 2010 - (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Developmental Counseling Form for positive urinalysis results for Marijuana. Electronic Copy of DD Form 2624, dated 15 July 2011, reflects the applicant tested positive for THC 15 (marijuana), during an Inspection, Other (IO) urinalysis testing, conducted on 18 June 2011. Bar to Reenlistment, dated 7 July 2012, reflects a recommendation for imposition of a bar to reenlisting i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; third-party letters; VA Statement in Support of Claim; NGB Form 22; Enlistee Record; DA Form 2807-1; Supplemental Health Screening Questionnaire; Police Record Check; Wisconsin driver record abstract; DD Form 1966; two DA Forms 4187; Report of Medical Examination; DD Form 214; Orders 183-1016; Bar to Reenlistment; Separation Orders; ARNG Annual Statement; and case separation packet. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been employed with General Mills for over eight years. 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 a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct 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) 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 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 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. (1) 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 any other characterization would be clearly inappropriate. (2) Paragraph 2-9b, prescribes, if a Soldier's service has been honest and faithful, it is appropriate to characterize 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. (3) 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. (4) Chapter 11 (previously Chapter 12), in affect at the time, provides in pertinent part, a Soldier may be discharged for misconduct when it is determined under the guidance set forth in chapter 2, section I, that the Soldier is unqualified for further military service by reason of one or more of the following circumstances: Abuse of illegal drugs or alcohol. Illegal drug use is serious misconduct. Separation action normally will be based upon commission of a serious offense. However, relevant facts may mitigate the nature of the offense. Therefore, a single drug offense may be combined with one or more disciplinary infractions or incidents or other misconduct and processed for discharge under paragraph 11-1a or 11-1b, as appropriate. (1) Commanders will process for separation all Soldiers who: (a) Test positive for illegal drug use. (b) Are involved in two serious incidents of alcohol-related misconduct within a 12-month period, in accordance with AR 600-85. (c) Are involved in illegal trafficking, distribution, possession, use, or sale of illegal drugs. (d) Are convicted of driving while intoxicated or driving under the influence a second time during their military career. (e) Have not been referred to a court-martial authorized to impose a punitive discharge. (2) The term "process for separation" means that the separation action will be initiated and processed through the chain of command to the separation authority for appropriated action. (3) Voluntary (self) identification/referral in accordance with AR 600-85 does not require initiation of discharge proceedings under this paragraph. (5) Paragraph 11-8, Characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under the guidelines in chapter 2. 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, including 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. (3) Para 6-35i defers to AR 135-178, chapter 11 (Misconduct): Paragraph 6-35i(1) provides specifically for acts or patterns of misconduct under the UCMJ, State Military Code, or similar laws, includes abuse of illegal drugs to include testing positive, two serious incidents of alcohol-related misconduct within a 12-month period, IAW AR 600-85, chapter 10, involved in illegal trafficking, distribution, possession, use or sale of illegal drugs and convicted of driving while intoxicated or driving under the influence a second time during their career. All Soldiers identified as abusers of illegal drugs will be referred for treatment as appropriate regardless of the commander's intent to take administrative, nonjudicial, or judicial actions. Commanders must initiate separation action within 45 days of the act or referral, regardless of the commander's recommendation. Recommendations for retention or separation will be forwarded through command channels to the separation authority. See AR 135-178, chapter 2, when the discharge authority decides to retain and as a condition of retention, enroll in a rehabilitation program as soon as possible. Enrollment and participation will be at no expense to the government. Commanders will immediately begin discharge actions for Soldiers who refuse or fail to enroll in a rehabilitation program because of committing a drug offense. AD (Drug abuse) RE 3 or 4 or MM (Misconduct) RE 3 or 4. 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 conditions, a narrative reason change, a separation code change, and a reentry code change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 6-35i(1), 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 "Acts or Patterns of Misconduct Under the UCMJ, State Military Code, or Similar Laws." Governing regulations stipulate no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the separation code for the discharge needs to be changed. However, separation code is not applicable for Army National Guard discharges as there is no provision for an entry of a separation code on the NGB Form 22. The applicant requests a reentry eligibility (RE) code change and 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 Army Regulation 601-201, 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 the one-time incident of testing positive for marijuana occurred when the applicant was immature and had not realized its impact and the negative affect on the unit. National Guard Regulation 600-200, paragraph 6-5c, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends immaturity affected the applicant's behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends always being at the top for PT tests, excelling at everything, and always having a good attitude, and giving 110 percent. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends successfully maintaining employment with General Mills, an employment which conducts random tests for alcohol and drugs. 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. The third-party statements provided with the application speak highly of the applicant character and performance and recognize the applicant's good conduct after leaving the Army National Guard. 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 Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention but determined only relief to the characterization of service is warranted based on the reasons listed in section 9c, below. The applicant's narrative reason for discharge was voted to be prior and equitable at this time. (2) The applicant contends the separation code for the discharge needs changed. The Board considered this contention but determined that there was no SPD Codes listed on the applicant's discharge paperwork, due to being in the National Guard, so no upgrade actions are required for this item. (3) The applicant requests a reentry eligibility (RE) code change and the applicant desires to rejoin the Military Service. The Board considered this contention and voted to maintain the RE-code to a RE-3, which is a waivable 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. (4) The applicant contends the one-time incident of testing positive for marijuana occurred when the applicant was immature and had not realized its impact and the negative affect on the unit. The Board considered this contention and determined that relief to the characterization of discharge was warranted based in part on the applicant's one-time drug use in response to this contention. (5) The applicant contends immaturity affected the applicant's behavior at the time of the discharge. The Board considered this contention and determined that relief to the characterization of discharge was warranted based in part on the time that has elapsed with no further infractions, in response to this contention. (6) The applicant contends always being at the top for PT tests, excelling at everything, and always having a good attitude, and giving 110 percent. The Board considered this contention and determined that relief to the characterization of discharge was warranted based in part on the totality of the applicant's service record, in response to this contention. (7) The applicant contends successfully maintaining employment with General Mills, an employment which conducts random tests for alcohol and drugs. The Board considered this contention and determined that relief to the characterization of discharge was warranted based in part on the applicant's post-service accomplishments and lack of further drug offenses, in response to this contention. (8) The third-party statements provided with the application speak highly of the applicant character and performance and recognize the applicant's good conduct after leaving the Army National Guard. The Board considered these statements during deliberations, and determined that relief to the characterization was warranted. c. The Board determined that the characterization of service was inequitable based on the applicant's length of service, prior period of honorable service, one-time drug use, and time elapsed since misconduct. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. The Board determined the narrative reason and RE code were proper and equitable and voted not to change them. The Board's recommendation was forwarded to the Chief, National Guard Bureau, Wisconsin Military Department, to the Adjutant General, State of Wisconsin, under the provisions of 10 USC § 1553, for final approval. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to Honorable because the applicant's length of service, prior period of honorable service, one-time drug use, and time elapsed since misconduct showed the totality of the applicant's record displayed an inequity in the discharge characterization. Thus the prior characterization is no longer appropriate. This recommendation was forwarded to the NGB for final approval. (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 - Act of Misconduct. (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 NGB Form 22a: Yes b. Change Characterization to: Honorable c. Change Reason: 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 AR20200007666 1