1. Applicant's Name: a. Application Date: 22 August 2022 b. Date Received: 22 August 2022 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests, through counsel, an upgrade to honorable along with a narrative reason and reentry (RE) code change. The applicant's counsel further requests removal of derogatory information from the applicant's record. The applicant's counsel seeks relief contending, in effect, the applicant's separation was procedurally defective at the time of the discharge; the adverse action, to include the administrative discharge, was unfair at the time; and the general (under honorable conditions) discharge is inequitably low. The applicant's discharge should be upgraded in the interest of equity, fairness, and justice. The applicant's counsel contends the applicant was unjustly and erroneously separated. The applicant's counsel contends the applicant was experiencing difficulties mentally and emotionally, but the command did not find out if there was any way that they could have helped the applicant. Although the command was authorized to administratively separate the applicant, the fundamental reason for the discharge was substantially deficient. The applicant's counsel contends there was no fully determined reason to initiate the applicant's elimination and the applicant was never offered or provided with legal counsel or rehabilitation, and the applicant's characterization of service does not serve any further purpose. The applicant's counsel states the events that took place are no longer relevant to the applicant's life and the applicant has lived in a responsible manner. There is no valid equitable purpose in leaving the discharge in place. The applicant's counsel contends an upgrade will have significant impact in the applicant's ability to receive proper benefits and recognition. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 3 October 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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: Misconduct / NGR 600-200, Paragraph 6-35i / NA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 14 March 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: The applicant submitted a copy of the Notification Letter of Separation Proceedings under the provisions of AR 135-178, Chapter 12, which he acknowledged dated 10 January 2015. However, the document was not signed by the applicant, but does appear to have the applicant's initials in certain boxes on the notification letter. (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: 10 January 2015 / The applicant requested a hearing before an administrative separation board and requested counsel for representation at the hearing. (See notification letter the applicant submitted with the application). (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 1 September 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 April 2006 (The applicant extended enlistment on 17 December 2014 for a period of 1 year giving a new ETS date of 27 April 2016.) b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19D10, Cavalry Scout / 8 years, 10 months, 17 days d. Prior Service / Characterizations: ARNG, 28 April 2006 - 4 July 2006 / NA ADT, 5 July 2006 - 6 September 2007 / HD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCAM-2, NDSM, ASR, NVMSR-2, NVGSR, NVRR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: NIF; however, documents submitted by the applicant's counsel provide the following information: Intent to Revoke Security Clearance memorandum, dated 3 August 2010, for having tested positive for Tetrahydrocannabinol (THC) on 6 March 2010. Electronic copy of the DD Form 2624, dated 31 December 2014, reflects the applicant tested positive for THC 42 during an Inspection Other (IO) urinalysis testing conducted on 7 November 2014. Notification memorandum to the applicant, dated 8 January 2015, indicating that on 7 November 2014, the applicant tested positive for THC. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Legal Brief, NGB Form 22, Electronic Copy of the DD form 2624, Separation Orders, Notification of Separation Proceeding Under AR 135- 178, Chapter 12, Memorandum, subject: Notification of Positive Urinalysis Results, dated 8 January 2015, Memorandum, subject: Security Clearance Determination..., dated 27 January 2011, Memorandum, subject: Security Clearance Determination, dated 27 December 2010, Memorandum, subject: Intent to Revoke Security Clearance, dated 3 August 2010, General Discharge Certificate, 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), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. (1) Paragraph 2-7 prescribes possible characterizations of service include an honorable, general (under honorable conditions), under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. (2) Paragraph 2-8, prescribes the characterization is based upon the quality of the Soldier's service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. e. 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 (1) defers to AR 135-178, chapter 12. (1) 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. (2) Paragraph 12-1d, terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 12-1a or 12-1b as appropriate. f. 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 Army National Guard for enlistment per DODI 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: 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. 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. 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. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests, through counsel, an upgrade to honorable along with a narrative reason and RE code change. The applicant's counsel further requests removal of derogatory information from the applicant's record. The applicant's AMHRR is void of the specific facts and circumstances concerning the events which led to his discharge from the Army National Guard of Nevada and the Reserves of the Army. However, the applicant's record does contain a properly constituted NGB Form 22 (Departments of the Army and the Air Force National Guard Bureau Report of Separation and Record of Service), which was not authenticated by the applicant's digital signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. The applicant's NGB Form 22 indicates the applicant was discharged under the provisions of NGR 600- 200, paragraph 6-35i (1), with a characterization of service of general (under honorable conditions). Further, the NGB Form 22 shows a reentry eligibility (RE) code of 4 which was later changed to a 3. The applicant's counsel contends the applicant's separation was procedurally defective at the time of the discharge; the adverse action, to include the administrative discharge, was unfair at the time; and the general (under honorable conditions) discharge is inequitably low. The applicant's counsel contends the applicant's discharge should be upgraded in the interest of equity, fairness, and justice. The applicant's counsel contends the applicant was unjustly and erroneously separated. The applicant's counsel contends the applicant was experiencing difficulties mentally and emotionally, but the command did not find out if there was any way that they could have helped the applicant. Although the command was authorized to administratively separate the applicant, the fundamental reason for the discharge was substantially deficient. The applicant's counsel contends there was no fully determined reason to initiate the applicant's elimination and the applicant was never offered or provided with legal counsel or rehabilitation and the applicant's characterization of service does not serve any further purpose. The applicant's counsel states the events that took place are no longer relevant to the applicant's life and the applicant has lived in a responsible manner and there is no valid purpose in leaving the discharge in place. The applicant's counsel contends an upgrade will have significant impact in the applicant's ability to receive proper benefits and recognition. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant's counsel requested removal of derogatory documents from the applicant's record. Removal of document from the applicant's records does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this issue. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Counsel / Witness(es) / Observer(s): 10. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Major Depressive Disorder (MDD) and Bereavement. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's MDD and Bereavement were diagnosed 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 applicant's assertion of mental and emotional difficulties and prior MDD diagnosis are acknowledged, there is no indication a behavioral health condition contributed to the drug use. Specifically, records indicate the applicant's initial 2008 diagnosis of MDD did not require treatment, i.e. not impairing functioning to the extent treatment was needed, and was cleared in 2010 with no diagnosis. The Board's Medical Advisor also determined that the applicant's Bereavement would not have affected the applicant's behavior to the extent that mitigation would be warranted in this case. Thus, the conditions are not mitigating factors. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's MDD or Bereavement outweighed the accepted basis for applicant's separation - two positive UAs for THC. b. Response to Contention(s): (1) The applicant's counsel contends the discharge was inequitable. 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 two failed tests for THC use. (2) The applicant's counsel contends experiencing difficulties mentally and emotionally, but the command did not find out if there was any way that they could have helped. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board determined that the Army has many legitimate avenues available to service members requesting assistance with mental and emotional difficulties and there is no evidence in the official records nor provided by the applicant that such assistance was pursued for MDD or bereavement counseling. The Board concluded that the applicant abusing drugs twice 4.5 years apart is not an acceptable response to dealing with mental and emotional difficulties, thus the applicant was properly and equitably discharged. (3) The applicant's counsel contends the command was authorized to administratively separate the applicant, but the fundamental reason for the discharge was substantially deficient. 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 two failed tests for THC use. (4) The applicant's counsel states the events that took place are no longer relevant to the applicant's life and the applicant has lived in a responsible manner and there is no valid purpose in leaving the discharge in place. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention and determined that there were insufficient post-service mitigating factors to outweigh the discharge. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 not to change the applicant's characterization of service because despite applying liberal consideration of all the evidence before the Board, the applicant's MDD and Bereavement did not excuse or mitigate the applicant's accepted basis of separation - two positive UAs for THC - due to there being no medically mitigating reason for the two instances of drug abuse separated by 4.5 years. 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 Board voted not to change the applicant's reason for discharge under the same pretexts, 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. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason to: 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 AR20220007301 1