1. Applicant’s Name: a. Application Date: 20 August 2020 b. Date Received: 25 August 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 discharge is improper due to not having the Army Substance Abuse Program (ASAP) evaluation as required by Army Regulation (AR) 600- 85 (The ASAP). The board's recommendation was overridden without the ASAP clinical findings considered. The applicant’s discharge is inequitable based on the applicant’s track record of over 11 years of service without any military or civilian adverse actions, being a very active and positive influence on the units the applicant served with in positions such as Battalion Victim Advocate and Platoon Sergeant. The board's recommendation came after a 6 hour hearing. The applicant is pursuing this change so that the applicant may continue Soldiering. The applicant spoke to an Army recruiter on 30 January 2020 and, after initially being told the applicant’s discharge characterization was acceptable for reenlistment, was informed a general (under honorable conditions) required an upgrade to be considered. b. Board Type and Decision: In a records review conducted on 11 October 2023, and by a 3-2 vote, the majority of the board denied the request upon finding the separation - Use of Illegal Drugs - 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: Use of Illegal Drugs / AR 135-178 (Enlisted Administrative Separations), Chapter 11-1d / NA / NA / General (Under Honorable Conditions) b. Date of Discharge: 29 January 2020 c. Separation Facts: The applicant’s Army Military Human Resource Record (AMHRR) is void of the case separation file. However, the applicant provided several documents which are described below in 3c(1) through (6). (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: On 8 December 2019, the administrative separation board convened and the applicant appeared with counsel. The Board determined by a preponderance of the evidence, that the applicant did violate Army Regulation 135-178, Chapter 11-1d, Misconduct-Abuse of Illegal Drugs. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. The board also recommended a 12-month suspension of the separation. On 8 December 2019, the separation authority approved the findings and recommendations of the administrative separation board with the following modification: Applicant separated from military service and receives a general (under honorable conditions) characterization of service. (6) Separation Decision Date / Characterization: 8 December 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 December 2016 / 6 years b. Age at Enlistment / Education / GT Score: 54 / Master’s Degree / 125 c. Highest Grade Achieved / MOS / Total Service: E-6 / 88H30, Cargo Specialist / 11 years, 8 months, 28 days d. Prior Service / Characterizations: USAF, 1 February 1991 - 1 July 1991 / UNC (Break in Service) USAR, 21 April 2006 - 16 May 2009 / HD IADT, 25 July 2006 - 12 September 2006 / HD (Concurrent Service) USAR, 9 November 2011 - 30 November 2016 / HD AD, 4 February 2016 - 21 January 2017 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Kuwait (27 March 2016 - 12 December 2016) f. Awards and Decorations: ARCOM, AAM, ARCAM-2, NDSM, GWOTEM, GWOTSM, NCOPDR, ASR, OSR, AFRM-M g. Performance Ratings: 2 April 2014 - 8 September 2015 / Fully Capable 9 September 2016 - 8 December 2017 / Exceeded Standards 9 December 2017 - 8 December 2018 / Met Standards 9 December 2018 - 8 December 2019 / / Exceeded Standards h. Disciplinary Action(s) / Evidentiary Record: The applicant provided Report of Proceedings by Board of Officers, 8 December 2019, shows the applicant tested positive for an illegal drug on or about 6 January 2019. The applicant provided Inspector General Action Request, 23 March 2020, showing the applicant tested positive on a urinalysis in January 2019. On 8 December 2019, the administrative board recommended a 12-month suspension. The separating authority elected immediate separation with a general, under honorable conditions discharge , effective 29 January 2020. All of this was made without input from the ASAP which is required under AR 600-85. The separation could be overturned under AR 135-178 paragraph 2-13b(2). 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; separation orders; Memorandum for Record, Administrative Separation Action; Memorandum for Record, Board Proceedings Recommendation; Report of Proceedings by Board of Officers; Summarized Transcript of Board Hearing; DD Form 1559 (Inspector General Action Request); Human Resources Command letter; Standard Form 180 (Request Pertaining to Military Records). 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), 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 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 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) Paragraph 2-13b(2) states once a Soldier receives their orders, by actual or constructive delivery, such orders may not be revoked except in one or more of the following circumstances: When one or more of the exceptions to the doctrine of administrative finality exist (that is, fraud; mistake of law; mathematical miscalculation; and/or substantial new evidence discovered contemporaneously within a short time following the action). (4) Chapter 11 (previously 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. (5) Paragraph 11-1d, prescribes illegal drug use is serious misconduct. Discharge 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. (6) Paragraph 11-8, states an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. e. Army Regulation 600-85 states, Soldiers who test positive for illicit drugs for the first time will be evaluated for dependency, disciplined, as appropriate, and processed for separation within 30 calendar days of the company commander receiving notification of the positive result from the ASAP in accordance with paragraph 10-6 of this regulation (the procedures in paragraph 10-9a(1) of this regulation may also apply.) If the positive drug report is for a medical review officer (MRO)-reviewable drug, all adverse administrative and legal actions will be suspended pending MRO determination that the use was not for legitimate medical purposes. Retention should be reserved for Soldiers that show clear potential for both excellent future service to the Army and for remaining free from substance abuse. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant’s AMHRR is void of the complete specific facts and circumstances concerning the events which led to the applicant’s discharge from the Army Reserve, however, the applicant provided several separation file documents. The applicant’s AMHRR does contain a properly constituted discharge order: Orders 20-022-00026, 22 January 2020. 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 contends, in effect, the discharge is improper due to not having the ASAP evaluation as required by AR 600-85. AR 135-178, paragraph 2-13b(2) states once a Soldier receives their orders, by actual or constructive delivery, such orders may not be revoked except in one or more of the following circumstances: When one or more of the exceptions to the doctrine of administrative finality exist (that is, fraud; mistake of law; mathematical miscalculation; and/or substantial new evidence discovered contemporaneously within a short time following the action). AR 600-85 states, Soldiers who test positive for illicit drugs for the first time will be evaluated for dependency, disciplined, as appropriate, and processed for separation within 30 calendar days of the company commander receiving notification of the positive result from the ASAP in accordance with paragraph 10-6 of this regulation (the procedures in paragraph 10-9a(1) of this regulation may also apply.) If the positive drug report is for a MRO- reviewable drug, all adverse administrative and legal actions will be suspended pending MRO determination that the use was not for legitimate medical purposes. Retention should be reserved for Soldiers that show clear potential for both excellent future service to the Army and for remaining free from substance abuse. The applicant contends, in effect, the applicant’s discharge is inequitable based on the applicant’s track record of over 11 years of service without any military or civilian adverse actions, and serving in positions such as Battalion Victim Advocate and Platoon Sergeant. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant is pursuing an upgrade so that the applicant may continue Soldiering. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. The applicant’s discharge orders do not reflect the reentry code; therefore, the applicant should contact a local recruiter to determine eligibility 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 codes if appropriate. 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 held an in- service diagnosis of Adjustment Disorder with civilian diagnosis of ADHD. Post-service, the applicant currently service connected for Mood Disorder NOS; however, the June 2023 C&P removed the diagnosis and current listing has the condition originating two years' post-service. (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder with civilian diagnosis of ADHD. The post-service connection indicated it originated more than two years' post-service; he did not have the condition in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that while the conditions are acknowledged, an Adjustment Disorder does not cause cognitive impairment driving drug use. The ADHD was already being treated, although VA providers suspect the condition does not exist as the applicant has consistently used the diagnosis to abuse civilian stimulant scripts. Accordingly, it is more than likely the applicant's cocaine use was merely a continuation of ongoing substance abuse unrelated to a clinical condition. However, even if the ADHD is taken into account, he was already receiving medication with no need to use illegal substances and symptoms controlled for; he did not have ADHD symptoms for consideration in terms of impaired control. The applicant's service connected condition is in the process of removal, but even if considered it is noted to be a progression of in-service symptoms, not a clinical condition, only backdated two years' post-service. (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, and determined that the available evidence did not support a conclusion that the applicant’s adjustment disorder outweighed the basis for applicant’s separation - Use of Illegal Drugs – for the forementioned reason(s). b. Response to Contention(s): (1) The applicant requests an upgrade to honorable. The board considered this contention during proceedings and voted not to change the applicant’s characterization of service because the applicant was administratively discharge for use of illegal drugs. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The applicant contends, in effect, the discharge is improper due to not having the ASAP evaluation as required by AR 600-85. The Board considered this contention all with the totality of the applicant’s service record and determine that in accordance with AR 600-85, Soldiers who test positive for illicit drugs for the first time will be evaluated for dependency, disciplined, as appropriate, and processed for separation within 30 calendar days of the company commander receiving notification of the positive result from the ASAP in accordance with paragraph 10-6 of this regulation. Also, AR 135-178, paragraph 2-13b (2) states once a Soldier receives their orders, by actual or constructive delivery, such orders may not be revoked except in certain circumstances, thus the applicant was properly and equitably discharged. (3) The applicant contends, in effect, the applicant’s discharge is inequitable based on the applicant’s track record of over 11 years of service without any military or civilian adverse actions and serving in positions such as Battalion Victim Advocate and Platoon Sergeant. The board considered this contention and the applicant’s assertion of inequity however the board determined that there is no evidence of said inequity in official records, and the applicant did not provide supporting documentation to overcome the presumption of regularity in the discharge process. Ultimately, the board determined that the assertion alone did not outweigh the applicant use of illegal drugs - the basis for separation. c. The majority of 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 contentions 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’s Adjustment Disorder did not mitigate the offense of use of illegal drugs. The applicant did not supply sufficient independent corroborating evidence to support contentions, and the discharge was consistent with the procedural and substantive requirements of the regulation. Since the applicant was discharged for wrongful use of illegal drug, General (Under Honorable Conditions), is proper and equitable. (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 DD-214 / Separation Order: No b. Change Characterization to: No Change 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 AR20210007187 1