IN THE CASE OF: BOARD DATE: 3 March 2016 DOCKET NUMBER: AR20150005571 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states that he was having problems during his military service, but Army officials never tried to determine the cause of his behavior. He states that he has been diagnosed as bipolar and had a diagnosis been made earlier, he may have been discharged with an honorable discharge. He adds that he received favorable commendations while he was serving on active duty, and he has worked hard to become a better person and to live an honorable life. 3. The applicant provides copies of his military commendations, civilian medical records, and letters of support. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army (RA) on 31 August 1983 for a period of 4 years. Upon completion of training he was: * awarded military occupational specialty (MOS) 76J (Medical Supply Specialist) * assigned to the 423rd Medical Company, Fort Lewis, WA, on 10 January 1984 * advanced to private first class (PFC)/pay grade E-3 on 1 June 1984 3. The applicant accepted nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): * Article 121, committing larceny on 16 October 1984 * Article 128, committing assault consummated by battery on a Soldier on 19 October 1984 4. A DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Client Intake Record) shows that based on command directive, the applicant was enrolled (on 27 August 1985) in Track II due to his cannabis use. It also shows he was released from the program on 28 October 1985 after awareness education, individual counseling, progress made during rehabilitation, and satisfactory completion of the program. 5. The applicant accepted NJP for violations of the UCMJ: * Article 107, making a false official statement to Military Police on 8 February 1986 * Article 112, wrongfully using cocaine between 17 February 1986 and 17 March 1986 6. A DA Form 3822-R (Report of Mental Status Evaluation), completed by a military physician on 23 May 1986, shows the applicant was found: * to be fully alert and oriented, his mood or affect unremarkable, thinking process clear, thought content normal, memory good, and mentally responsible for his behavior * to have the mental capacity to understand and participate in proceedings 7. A Standard Form 88 (Report of Medical Examination), prepared to document the applicant's separation physical examination on 23 May 1986, shows the examining physician found the applicant qualified for separation. 8. On 18 July 1986, the applicant's commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c, based on commission of serious offenses. a. The reasons for his proposed action were, on: * 16 October 1984, committing larceny * 19 October 1984, committing assault consummated by battery * 6 June 1985, submitting a urine sample for urinalysis which showed a positive test result for the presence of tetrahydrocannabinol (THC) * 17 March 1986, submitting a urine sample for urinalysis which showed a positive test result for the presence of cocaine * 15 May 1986, being apprehended for driving while under the influence b. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he was recommending the issuance of an under other than honorable conditions discharge. c. The applicant acknowledged receipt of the commander's notification and that he had been advised of his right to consult with counsel. 9. Following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him. a. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him. b. The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could make application to the Army Discharge Review Board (ADRB) or ABCMR for upgrading his discharge. However, an act of consideration by either board did not imply that his discharge would be upgraded. c. He declined consideration of his case by an administrative separation board and he waived personal appearance before an administrative separation board. d. He elected not to submit statements in his own behalf; however, he did submit a statement. e. The applicant and his counsel placed their signatures on the document. f. The applicant's statement shows he expressed that if he were given the chance to change what he had done in the Army over the past 3 years, he would make the necessary changes to be a Soldier that helps make the Army operate. He identified his accomplishments that included a Commander's Special Recognition Award, Special Olympians Certificate, Certificate of Training and plaque, and a letter of appreciation. He summarized his Army "experience" with a focus on his long work hours that resulted in him losing sleep. He concluded, "I'm young and single and I guess I have too much pride to breakdown and just totally explain to any one person what the Army has done to me." 10. The applicant's chain of command recommended approval of the applicant's discharge with an under other than honorable conditions discharge. 11. The separation authority approved the recommendation for discharge of the applicant, reduced him to the lowest enlisted grade (E-1), and directed discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, with an under other than honorable conditions discharge. 12. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 5 September 1986 under the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct (drug abuse) with service characterized as under other than honorable conditions. a. He had completed 3 years and 5 days of net active service during this period. b. It shows has awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar. 13. The applicant submitted an application to the ADRB for an upgrade of his discharge. On 2 February 1996, the ADRB determined that the reason for his discharge and the character of his service were both proper and equitable. Accordingly, the ADRB denied the relief requested by the applicant. 14. In support of his application the applicant provides the following documents: a. certificates and letters of appreciation that show he: * received a 49th Medical Battalion, Commander's Special Recognition Award, for outstanding performance of duty during Exercise Gallant Eagle 84 (30 August 1984 to 14 September 1984) * received a Certificate of Appreciation for his support and efforts at the 1985 Washington State Special Olympics * completed the Supervisory Supply Manager Workshop (Level 2) and Organizational Supply Management System Training (3 June 1985 to 7 June 1985) * completed Medical Proficiency Training (6 January to 1 March 1986) * was recognized with a letter of appreciation in – * January 1986, for his efforts to enhance the job knowledge of unit personnel concerning the Army Medical Supply System * July 1986, for his performance of duty as Medical Supply Specialist, Supply Room Section, 423rd, Medical Company (Clearing) b. Hinds Behavioral Health Services, Jackson, MS, medical records spanning the period 19 February 2007 to 12 January 2015 that, in pertinent part, show on: * 19 February 2007 – * the applicant reported that he would use (on daily basis) heroin, marijuana, and cocaine as much as he could get to self-medicate, and that he last used on 18 January 2007 * Primary Disability: Mental Health * Diagnostic and Statistical Manual of Mental Disorders – * Axis 1: bipolar disorder (not otherwise specified) * Axis 2: polysubstance dependence * 12 January 2015 – * the applicant reported that he had stayed away from all alcohol and all drugs for the past 6 years * Diagnostic Impression: bipolar disorder c. A letter and four State of Illinois, Office of the Secretary of State, Department of Administrative Hearings, Out-Of-State Petitioner Documentation of Abstinence/ Character/Substance Use prepared (in November and December 2010 and January 2011) by five individuals who know the applicant and show that he had abstained from alcohol and/or drugs for approximately two and one-half years. d. A letter written by T___ O. D____, dated 10 December 2010, in support of the applicant's application for a driver's license. e. Ten character reference letters spanning the period 3 January 2015 to 4 February 2015 (with two that are undated) written in support of the applicant. All of the individuals attest to the applicant's positive personal characteristics, dedication to helping members of his family and managing his own business, spiritual commitment to his religious beliefs, and willingness to help organizations and individuals in his community. His endurance through some very trying times in his life was also noted. 15. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. a. Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. b. Chapter 3, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his under other than honorable conditions discharge should be upgraded because he was having problems during his military service, Army officials never tried to determine the cause of his behavior, and he has been diagnosed as bipolar. 2. The evidence of record shows the applicant entered the RA on 31 August 1983, successfully completed training, was awarded MOS 76J, and attained the rank of PFC (E-3) during his first 9 months of active duty without evidence of any acts of violence, misconduct, or drug use. 3. The evidence of record shows he committed larceny (on 16 October 1984) and assault consummated by battery on a Soldier (on 19 October 1984). a. On 6 June 1985, the applicant submitted a urine sample that tested positive for the presence of THC. His commander referred him to ADAPCP based on his cannabis use and the applicant satisfactorily completed the program on 28 October 1985. b. On 17 March 1986, the applicant submitted a urine sample that tested positive for the presence of cocaine. c. A Report of Mental Status Evaluation, completed on 23 May 1986, shows the applicant was evaluated by an Army physician and, in pertinent part, he was found mentally responsible for his behavior. d. Thus, the evidence of record refutes the applicant's contention that Army officials never tried to determine the cause of his behavior. In fact, the evidence of record shows the Army took positive action to assist the applicant in changing his behavior with respect to his drug use. 4. The applicant's administrative discharge under the provisions of Army Regulation 635-200, chapter 14, based on commission of serious offenses (drugs abuse) was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the reason for and type of discharge directed were appropriate and equitable. 5. The evidence of record shows the applicant received NJP on four occasions for various acts of misconduct and the reasons for his separation included larceny; assault consummated by battery; two positive urinalysis tests for the presence of THC and cocaine, respectively; and driving while under the influence. In addition, he was reduced to pay grade E-1 and he failed to complete his 4-year active duty obligation. The applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel. The evidence does not support upgrading his discharge. 6. There is no available evidence that shows the applicant suffered from any mental condition while on active duty. The evidence of record shows the applicant was diagnosed with bipolar disorder (not otherwise specified) and polysubstance dependence more than 20 years after his discharge from the U.S. Army. In addition, the applicant's good post-service conduct was considered. However, in this case, post-service conduct is not sufficiently mitigating as a basis for upgrading the applicant's discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ____x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _x______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150005571 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005571 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1