1. Applicant's Name: a. Application Date: 25 September 2020 b. Date Received: 25 September 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: (1) The current characterization of service for the period under review is under other than honorable conditions. The applicant requests, in effect, an upgrade in their characterization of service to honorable and in their reentry code. (2) The applicant seeks relief stating they are requesting reconsideration of their discharge status and a change of reentry code in order to reenlist. (3) In their letter, dated 15 September 2020, they state - (a) They regret not caring how they chose to end their memorable years of service. After their first and second deployments to Iraq they started to use marijuana looking for a balance, which ultimately led to their discharge. (b) Since their discharge, they have completed truck driving training and started their own trucking business. Then in 2017, they completed their degree in Aviation Sciences at a community college. (c) They have not used marijuana or any other drugs since their separation from the National Guard. They wish to reenlist and apply for Warrant Officer Candidate School and become an Army Aviator. They are asking for reconsideration of their character of service, reenlistment code, and allow them to reenlist for active duty with their previous rank/grade of sergeant/E-5. b. Board Type and Decision: In a records review conducted on 17 November 2023, and by a 5-0 vote, the Board determined the discharge is inequitable and voted to grant relief in the form of an upgrade of the characterization of service to General, changed the separation authority to NGR 600-200, Paragraph 6-35f, the narrative reason for separation to Unsatisfactory Performance, with no change to the reentry code. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Acts or Patterns of Misconduct under the Uniform Code of Military Justice (UCMJ)), State Military Code or Similar Laws / National Guard Regulation 600-200, Paragraph 6-35i(1) / RE-Code 4 / Under Other Than Honorable Conditions b. Date of Discharge: 10 November 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 July 2010 (2) Basis for Separation: The applicant was informed of the following reason, Misconduct (wrongful use of illegal drugs-2nd offense). (3) Recommended Characterization: Under Other Than Honorable Condition (4) Legal Consultation Date: NIF (5) Administrative Separation Board: A memorandum, Headquarters, Army Element, Washington National Guard, subject: Legal Review of Administrative Separation Packet for [Applicant], dated 24 August 2011, reflects the applicant waived their rights to have their case heard by an administrative separation board. (6) Separation Decision Date / Characterization: 10 November 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 November 2005 / 6 years b. Age at Enlistment / Education / GT Score: NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 63M20, Bradley Fighting Vehicle System Maintainer / 11 years, 7 months, 15 days d. Prior Service / Characterizations: IADT, 11 April 2000 - 14 September 2000 / HD (Concurrent Service) AD, 30 January 2003 - 18 November 2003 / HD (Concurrent Service) AD, 19 November 2003 - 30 April 2005 / HD (Concurrent Service) AD, 18 August 2008 - 8 October 2009 / HD (Concurrent Service) e. Overseas Service / Combat Service: None / Iraq (13 March 2004 - 16 March 2005; 24 October 2008 - 30 July 2009) f. Awards and Decorations: ARCOM, AAM, NDSM, ICM-2CS, GWTEM, GWTSM, NCODR, ASR, OSR-2, AFRM g. Performance Ratings: 16 August 2009 - 15 August 2010 / Fully Capable 16 August 2010 - 15 August 2011 / Marginal h. Disciplinary Action(s) / Evidentiary Record: (1) A DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 19 August 2004, reflects the applicant received nonjudicial punishment for, without authority, failed to go at the time prescribed to their appointed place of duty, on or about 27 July 2004. Their punishment consisted of a reduction in rank/grade from sergeant/E-5 to specialist/E-4. The applicant elected to appeal and to submit additional matters; however, their additional matters are not in evidence. On 21 August 2004, after consideration of all matters presented in the appeal, the appeal was denied. (2) A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 11 August 2006, reflects a flag was initiated on 11 August 2006 for adverse action. Note the adverse action is not in evidence in the applicant's Army Military Human Resource Record (AMHRR). (3) Electronic Copy of DD 2624, dated 10 March 2010, reflects the applicant tested positive for THC 51 during an inspection unit (IU) urinalysis conducted on 20 February 2010. (4) Washington Army National Guard (ARNG) Form 135-12 (Notification of Separation/Separation Board Authorized), dated 25 June 2010, notified the applicant of the initiation of separation action against them for misconduct (wrongful use of illegal drugs - 2nd offense) with a characterization of service of Under Other Than Honorable Conditions. A Postal Form 3811 (Domestic Return Receipt) reflects the applicant signed for their notification of separation on 2 July 2010. (5) A memorandum, 181st Brigade Support Battalion, titled: Commanding Officer's Report to the Separation Authority, subject: Administrative Separation of [Applicant], undated, reflects the battalion commander's recommendation to separate the applicant from the ARNG under the provisions of Army Regulation 135-178, paragraph 12-1 (Abuse of Illegal Drugs) with a characterization of service of Under Other Than Honorable Conditions. The commander stated the applicant was previously retained after testing positive and has tested positive again. (6) A memorandum, Headquarters, 81st Heavy Brigade Combat Team, subject Initial Review of the Chapter 12-1(d) Separation of [Applicant], dated 16 November 2010, the Judge Advocate states the administrative packet as presented was reviewed by their office and is legally sufficient. The Soldier was properly served notice and an Affidavit of Service is included. The company and battalion commanders both recommend characterization of service be Under Other Than Honorable Conditions. (7) A DA Form 2166-8 (NCO Evaluation Report (NCOER)), covering the period 16 August 2010 through 15 August 2011, reflects a negative evaluation filed in the applicant's AMHRR performance folder. (a) Part II (Authentication) shows the rater, and the senior rater signed the NCOER on 16 October 2011, and the applicant did not sign the NCOER. (b) Part IV (Army Values/Attributes/Skills/Actions) shows the rater marked "NO" for "Loyalty," "Duty," "Selfless-Service," "Honor," and "Integrity," and commented, "absent without leave from annual training 2010, did not communicate effectively with Chain of Command, and was not loyal to the Unit or [applicant's] Soldiers." (c) Part IVb - Part IVf (Values/NCO Responsibilities) shows the rater marked "Needs Improvement (Some)" in all five blocks and provided negative comments. (d) Part V (Senior Rater Overall Potential) shows the senior rater rated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Marginal" and commented "Soldier not ready for positions of greater responsibility, do not promote this Soldier at this time, and Soldier not available for signature." (8) A memorandum, Headquarters, Army Element, Washington National Guard, subject: Legal Review of Administrative Separation Packet for [Applicant], dated 24 August 2011, the Administrative Law Attorney states they have reviewed the separation packet and have found it legally sufficient. The Soldier waived his right to have his case heard by an administrative separation board. (9) The Adjutant General Packet Summary, undated, states the applicant has tested positive for THC [Tetrahydrocannabinol] on two occurrences. They were previously retained after abuse of illegal substance in 2008. Soldier did not attend any treatment. The applicant went absent without leave; all correspondence was sent to last known home of record and they signed for notification of separation. They failed to concur with plan of action. The Chain of Command concur with characterization of service of Other Than Honorable Conditions and a Re-entry Code-4. (10) A memorandum, Joint Force Headquarters, Washington National Guard, subject: Administrative Involuntary Separation - Abuse of Illegal Substance by [Applicant], dated 10 November 2011, The Adjutant General stated they have reviewed the subject's administrative involuntary separation action and direct the applicant be discharged from the Washington ARNG for abuse of illegal substance and that their characterization of service be Under Other Than Honorable Conditions. The applicant's discharge order will be coded RE-4 (Nonwaiverable Disqualification) to preclude him from returning to the Washington ARNG. (11) Headquarters Military Department, State of Washington Orders 321-915, dated 17 November 2011, reduced the applicant in grade from sergeant/E-5 to private/E-1 with an effective date of 10 November 2011. (12) Headquarters Military Department, State of Washington Orders 321-920, dated 17 November 2011, discharged the applicant from the ARNG, effective 10 November 2011. Their type of discharge is shown as Under Other Than Honorable Conditions and a RE-4. (13) National Guard Bureau Form 22 (Report of Separation and Record of Service) reflects the applicant was discharged on 10 November 2011 and shows in: * item 5a (Rank) - Private * item 5b (Pay Grade) - E-1 * item 6 (Date of Rank) - 10 November 2011 * item 10a (Net Service This Period) - 11 years, 7 months, 16 days * item 23 (Authority and Reason) - National Guard Regulation 600-200, paragraph 35i(1) Acts or Patterns of Misconduct under the UCMJ, State Military Code or Similar Laws * item 24 (Character of Service) - Under Other Than Honorable Conditions * item 26 (Reenlistment Eligibility) RE-4 i. Lost Time / Mode of Return: NIF j. Behavioral Health Condition(s): NIF 5. APPLICANT-PROVIDED EVIDENCE: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * National Guard Bureau Form 22 (Report of Separation and Record of Service) * Letter, reflecting their request * Driver License * United States of America Department of Transportation, Federal Aviation Administration, Commercial Pilot License * Community College Diploma reflecting their completion of the Associate of Applied Science - Aviation Professional Pilot Helicopter course of study for their degree * Character Letter, attesting to the applicant service and their success after their separation from the National Guard 6. POST SERVICE ACCOMPLISHMENTS: completion of the Aviation Professional Pilot Helicopter course of study for their Associate of Applied Science degree. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, (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, Title 10, U.S. Code, Section 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 (DoD) 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; Title 10, U.S. Code, Section 1553; and DoD Directive 1332.41 and DoD Instruction 1332.28. d. Army Regulation 135-178 (Enlisted Administrative Separations), dated 13 April 2007, set policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG of the United States and U.S. Army Reserve enlisted Soldiers for a variety of reasons. Paragraph 12-1 (Basis) stated, a Soldier may be discharged for misconduct when it is determined under that they are unqualified for further military service by reason, to include abuse of illegal drugs. Abuse of illegal drugs 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 abuse offense may be combined with one or more disciplinary infractions or incidents of other misconduct and processed for discharge. e. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), dated 14 May 2010, prescribed the enlisted promotions and reductions function of the military personnel system. Paragraph 10-1d stated when the separation authority determines that a Soldier is to be discharged from the Service under other than honorable conditions, he/she will be reduced to the lowest enlisted grade. Board action is not required for this reduction. f. Army Regulation 600-200 (Enlisted Personnel Management), dated 31 July 2009, provided the basic authority for the separation of enlisted personnel from the ARNG and ARNG of the United States. (1) 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) A General discharge is if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspect of the Soldier's conduct or performance of duty outweighs positive aspects of the Soldier's military record. (3) A Under Other Than Honorable Conditions Discharge, service may, but is not required to be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, homosexual conduct, unsatisfactory participation, or security reasons. The Adjutant General will direct reduction in grade to private/E-1 when the Soldier is discharged under other than honorable conditions. g. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and ARNG for enlistment per DoD Instructions 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. h. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) dated 16 February 2009, provided a comprehensive alcohol and drug abuse prevention and control policies, procedures, and responsibilities for Soldiers of all components. The ASAP is a command program that emphasizes readiness and personal responsibility. The ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier's chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army Values, the Warrior Ethos, and the standards of performance, discipline, and readiness necessary to the Army's mission. (1) Unit commanders must intervene early and refer all Soldiers suspected of being alcohol and/or drug abusers to the ASAP. The unit commander should recommend enrollment based on the Soldier's potential for continued military service in terms of professional skills, behavior, and potential for advancement. (2) ASAP participation is mandatory for all Soldiers who are command referred. Failure to attend a mandatory counseling session may constitute a violation of Article 86 (Absence Without Leave) of the UCMJ. (3) Alcohol and/or other drug abusers, and in some cases dependent alcohol users, may be enrolled in the ASAP when such enrollment is clinically recommended. Soldiers who fail to participate adequately in, or to respond successfully to, rehabilitation will be processed for administrative separation and not be provided another opportunity for rehabilitation except under the most extraordinary circumstances, as determined by the Clinical Director in consultation with the unit commander. (4) All Soldier who are identified as drug abusers, without exception, will be referred to the ASAP counseling center for screening; be considered for disciplinary action under the UCMJ, as appropriate; and be processed for administrative separation in accordance with Army Regulation 635-200. 8. SUMMARY OF FACT(S): a. The Army Discharge Review Board considers applications for upgrade as instructed by DOD Instruction 1332.28. b. A review of the available evidence provides the applicant tested positive for abuse of illegal substance to two occurrences. As a result, separation proceedings were initiated, and they were recommended by their chain of command to be separated from the service with an Other Than Honorable Conditions discharge. They completed 11 year, 7 months, and 16 days net active service this period; however, their reenlistment contractual obligation were not in evidence in their AMHRR. c. Army Regulation 135-178, chapter 12 establishes policy and prescribes procedures for separation members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. d. Neither the applicant nor the AMHRR provide documentation of PTSD diagnosis prior to the applicant's discharge from the service. e. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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/experiences: Adjustment DO. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found Adjustment DO diagnosis was made during military 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 there are no mitigating BH conditions. While the applicant was diagnosed with Adjustment DO while in the Army, this condition does not mitigate wrongful use of illicit drugs as Adjustment DO is a brief, mild, temporary condition not typically associated with the long-term compensatory changes in behavior, such as self-medication, seen in more severe, chronic BH conditions. As for the applicant's wife's contention that the applicant suffered from undiagnosed PTSD, there is no indication in the available military medical records that this was the case. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience did not outweigh the basis of separation- Misconduct (wrongful use of illegal drugs- 2nd offense). While the applicant was diagnosed with Adjustment DO while in the Army, this condition does not mitigate wrongful use of illicit drugs as Adjustment DO is a brief, mild, temporary condition not typically associated with the long-term compensatory changes in behavior, such as self-medication, seen in more severe, chronic BH conditions. b. Prior Decisions Cited: None c. Response to Contention(s): (1) The applicant contends they are asking for reconsideration of their character of service, reenlistment code, and to allow them to reenlist for active duty with their previous rank/grade of sergeant/E-5. The Board considered this contention and determined that Headquarters Military Department, State of Washington Orders 321-915, dated 17 November 2011, reduced the applicant in grade from sergeant/E-5 to private/E-1 with an effective date of 10 November 2011, a change to the applicant's characterization of service/RE code is not warranted. (2) The applicant contends they have not used marijuana or any other drugs since their separation from the National Guard and they wish to reenlist and apply for Warrant Officer Candidate School and become an Army Aviator. The Board considered this contention and determined that a change to the applicant's characterization of service/RE code is not warranted. d. The Board determined the discharge is inequitable and voted to grant relief in the form of an upgrade of the characterization of service to General and changed the separation authority to NGR 600-200, paragraph 6-35f, the narrative reason for separation to Unsatisfactory Performance, with no change to the reentry code. e. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service based on the following reasons: the Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board found sufficient evidence of in-service mitigating factors (Length, Quality, Combat) and post service accomplishments that does mitigate the applicant's wrongful use of illegal drugs. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. The Board voted to upgrade to GD/Unsatisfactory Performance, NGR 600-200, Paragraph 6-35f. No change to RE code (RE-4). (2) The Board voted to change the applicant's reason for discharge to Unsatisfactory Performance. (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: General c. Change Reason: Unsatisfactory Performance d. Change RE Code to: No change e. Change Authority to: NGR 600-200, Paragraph 6-35f 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 AR20210009779 1