1. Applicant's Name: a. Application Date: 9 April 2020 b. Date Received: 25 September 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. The applicant seeks relief contending, in effect, the applicant tested positive for cocaine with a nanogram level, the current DOD cutoff is 100 nanograms. After the notification, the applicant went to a doctor and took another urinalysis which came back negative. The applicant also went to another testing lab to do a hair follicle test to see if there was a history of cocaine in the applicant system, that test was also negative. An administrative separation board determined the applicant had not committed the alleged serious misconduct. The applicant's legal counsel appealed to the Texas Adjutant General to not remove the applicant from AGR and/or list the characterization as honorable, but the request was denied. b. Board Type and Decision: In a records review conducted on 15 December 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, and the circumstances surrounding the discharge (Post-Traumatic Stress Disorder). 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/SPD code and RE code 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: Miscellaneous/General Reasons / To Be Determined / LND / RE-3 / General (Under Honorable Conditions) b. Date of Release from Active Duty: 2 April 2020 c. Separation Facts: The applicant's AMHRR is void of a separation packet. Information pertaining to separation was provided by applicant. (1) Date of Notification of Intent to Separate: 6 March 2019 (2) Basis for Separation: The applicant was informed of the following reasons: Under the provisions of AR 135-178, Chapter 11, Para 11-1d (currently Chapter 12), and NGR 600- 200, Chapter 6, Paragraph 6-35i, due to use of an illegal substance, specifically, cocaine. It was recommended the applicant be retained. (3) Recommended Characterization: Honorable (4) Legal Consultation Date: 25 March 2019 (5) Administrative Separation Board: In the board proceedings concerning the applicant, the board found by a preponderance of the evidence that the applicant did not commit the alleged offense of serious misconduct to wit: the use of illegal drugs that being cocaine. The board recommended the applicant be retained in military service. (6) Separation Decision Date / Characterization: NIF / NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: Enlistment contract for the period under review in not in the file b. Age at Enlistment / Education / GT Score: Unknown / HS Graduate / 126 c. Highest Grade Achieved / MOS / Total Service: E-8 / 92G58, Culinary Specialist / 16 years, 7 months, 30 days d. Prior Service / Characterizations: RA, 24 September 2020 - 31 May 2021 / HD (Concurrent Service) RA, 4 January 2012 - 27 October 2012 / HD (Concurrent Service) RA, 13 September 2009 - 3 January 2012 / HD (Concurrent Service) RA, 14 January 2008 - 12 September 2009 / HD (Concurrent Service) RA, 13 August 2003 - 12 August 2007 / HD e. Overseas Service / Combat Service: SWA / Kuwait (16 October 2020 - 11 May 2021), Djibouti/Ethiopia (17 January 2012 - 19 October 2012), Iraq (6 February 2004 - 31 March 2004), (25 November 2005 - 20 October 2006) f. Awards and Decorations: MSM-2, ARCOM-10, AAM-4, MUC-2, VUA, AGCM-4, NDSM, GWOTEM, GWOTSM, ICM-CS-4, NCOPDR-3, ASR, OSR-3, AFRM-M Device, CAB g. Performance Ratings: 16 January 2019 - 15 January 2020 / Highly Qualified 16 January 2018 - 15 January 2019 / Most Qualified 26 March 2017 - 15 January 2018 / Most Qualified 26 March 2016 - 25 March 2017 / Highly Qualified 26 March 2015 - 25 March 2016 / Most Qualified 26 March 2014 - 25 March 2015 / Among The Best 26 March 2013 - 25 March 2014 / Fully Capable 11 September 2012 - 25 March 2013 / Among The Best 13 September 2011 - 10 September 2012 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: (1) Mental Status Evaluation, 26 February 2019, reflects the applicant could understand and participate in the administrative proceedings and could appreciate the difference between right and wrong. There were no indications of acute or chronic mental illness. (Provided by applicant) (2) Memorandum, subject: Notification of Illicit Positive Drug Test Results for [Applicant], 4 January 2019, reflects the laboratory designated to test for substance abuse through urinalysis evaluations provided results indicating the applicant had tested positive for cocaine on 18 November 2018. (Provided by applicant) (3) Quest Diagnostics Form, dated 20 January 2019, reflects the applicant tested negative for cocaine and other illicit substances for a specimen collected on 18 January 2019. (Provided by applicant) (4) United States Drug Testing Laboratories Form, dated 25 January 2019, reflects the applicant tested negative for cocaine and other illicit substances for a hair follicle collected on 23 January 2019. (Provided by the applicant) (5) Memorandum, subject: Positive Drug Report for [Applicant], 26 March 2019, reflects the laboratory test procedures and findings resulted in an initial screen positive for cocaine metabolites on 27 November 2018 and confirmation screen positive at 111ng/ml for benzoylecgonine on 28 November 2018. (Provided by applicant) (6) Veridicus Inc. Form, dated 14 April 2019, reflects the applicant conducted a polygraph examination on regarding cocaine use in November 2018 which the applicant answered "No" to relevant questions that resulted in the applicant answering the questions truthfully. (Provided by applicant) (7) Memorandum, subject: Separation for Misconduct - Abuse of Illegal Drugs for [Applicant], 12 August 2019, reflects Texas National Guard Commander (MG P.M.H.) recommended the applicant be retained. (Provided by the applicant) (8) Memorandum, subject: Summary of Board Proceedings Concerning [Applicant], 26 October 2019, reflects the board found by a preponderance of the evidence that the applicant did not commit the alleged offense of serious misconduct to wit: the use of illegal drugs that being cocaine. The board recommended the applicant be retained in military service. (Provided by the applicant) (9) On 28 October 2019, the applicant's counsel's request to reconsider the applicant removal from the Active Guard Reserve program for the illegal drug use - cocaine was denied by the Texas Adjutant General after considering all the evidence. (Provided by applicant) 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, DD Form 214, Separation Packet, Administrative Separation Board Findings, Character letter, photograph, Administrative Separation Board Witness List, AGR Reconsideration Request, TAG Decision to Separate (258 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. 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. Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. Paragraph 6-35i defers to AR 135-178, chapter 12 e. Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. (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 that 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 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. (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. (4) Paragraph 12-1b, describes a pattern of misconduct as discreditable conduct and conduct prejudicial to good order and discipline include conduct which violates the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time- honored customs and traditions of the Army. (5) Paragraph 12-8 states the characterization of service will normally be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under the guidelines on chapter 2, section III. 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 Army Military Human Resources Record (AMHRR), 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 Active Guard Reserve (AGR). A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was released from active duty on 2 April 2020 with a general (under honorable conditions) characterization of service. The applicant provides documents from the separation packet. The separation authority's decision was not provided with the applicant's evidence and is not filed in the applicant's AMHRR. There is no way to determine under what provisions the separation authority approved the applicant's release from active duty. The applicant contends, in effect, the applicant tested positive for cocaine with a nanogram level, the current DOD cutoff is 100 nanograms. After the notification, the applicant went to a doctor and took another urinalysis which came back negative. The applicant also went to another testing lab to do a hair follicle test to see if there was a history of cocaine in the applicant system, that test was also negative. The applicant contends, in effect, an administrative separation board determined the applicant had not committed the alleged serious misconduct. In the board proceedings concerning the applicant, the board found by a preponderance of the evidence that the applicant did not commit the alleged offense of serious misconduct to wit: the use of illegal drugs that being cocaine. The board recommended the applicant be retained in military service. The applicant contends, in effect, the applicant's legal counsel appealed to the Texas Adjutant General to not remove the applicant from AGR and/or list the characterization as honorable, but the request was denied. On 31 October 2019, the applicant's counsel's request to reconsider the applicant removal from the Active Guard Reserve program for the illegal drug use - cocaine was denied by the Texas Adjutant General after considering all the evidence. 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 diagnoses: the applicant was diagnosed with an Adjustment Disorder in-service, both on and off-post, and Post-Traumatic Stress Disorder on-post. The applicant appears to still be in-service, although retiring this month, with VA C&P diagnosing combat related Post-Traumatic Stress Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed with an Adjustment Disorder in-service, both on and off-post, and Post-Traumatic Stress Disorder on-post. The applicant appears to still be in-service, although retiring this month, with VA C&P diagnosing combat related Post-Traumatic Stress Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that if the applicant did use, given nexus between substance use and trauma the basis for separation would be mitigated. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Post-Traumatic Stress Disorder outweighed the illegal use of cocaine basis for separation for the aforementioned reason. b. Response to Contention(s): (1) The applicant contends the applicant tested positive for cocaine with a nanogram level, the current DOD cutoff is 100 nanograms. After the notification, the applicant went to a doctor and took another urinalysis which came back negative. The applicant also went to another testing lab to do a hair follicle test to see if there was a history of cocaine in the applicant system, that test was also negative. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Post-Traumatic Stress Disorder fully outweighing the applicant's illegal use of cocaine basis for separation. (2) The applicant contends an administrative separation board determined the applicant had not committed the alleged serious misconduct. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Post-Traumatic Stress Disorder fully outweighing the applicant's illegal use of cocaine basis for separation. (3) The applicant contends the applicant's legal counsel appealed to the Texas Adjutant General to not remove the applicant from AGR and/or list the characterization as honorable, but the request was denied. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Post-Traumatic Stress Disorder fully outweighing the applicant's illegal use of cocaine 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, and the circumstances surrounding the discharge (Post-Traumatic Stress Disorder). 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/SPD code and RE code were proper and equitable and voted not to change them. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Post-Traumatic Stress Disorder mitigated the applicant's misconduct of illegal use of cocaine. Thus, the prior characterization is no longer appropriate. (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. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: No Change d. Change RE Code to: No Change e. Change Authority to: AR 635-200 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 AR20210005983 1