IN THE CASE OF:  BOARD DATE:  17 August 2020 DOCKET NUMBER:  AR20200000046 


APPLICANT REQUESTS: 

.an upgrade of his under honorable conditions (general) discharge to fullyhonorable

.personal appearance before the Board



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Certificate of Release or Discharge from Active Duty)

.Self-written statement

.Desert News article titled “Memorial to hail 12 victims of 92 copter crash”



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

a.He did not understand his depression over the loss of his friend in 1995.  Back

when he became a Ranger in the 1/75th Ranger Battalion it was the proudest time in his life.  He loved being a Ranger in the Army as he wanted to make it his career.  He served as a Ranger with honor until he failed a drug test and was discharged for misconduct.  He put the discharge behind him and became a civilian.  He did not talk much until a few years ago his father (a retired professor of psychology) asked him to talk with him about what happened.  He [the father] determined at the time the applicant was in fairly deep depression due to some devastating losses of close friends. b. In the summer of 1992, he was in 2nd Platoon Charlie Company “RTO”.  Heworked closely with Headquarters Company RTOs Sergeant M and Specialist B.  In September he got a slot in Ranger school class 1-93.  On October 29th that Battalion was training off Antelope Island Utah, a Black Hawk carrying Headquarters element 






crashed with Specialist B, Sergeant M and 11 others on board.  The only Survivor was the pilot.  When he graduated Ranger school it was business as usual, we did not talk much about what happened.  Two weeks before he graduated his girlfriend was killed in a car crash, he did not know until he got home.  The following October 3rd he lost another friend Sergeant JJ who he met in Ranger school to the Battle of Mogadishu. b. To cope with these losses he would binge drink when the unit was released for weekends.  One Monday he took a random drug test and was positive for cocaine.  He never used any drugs in his life other than drinking and smoking cigarettes.  Years later a friend told him that he may have smoked a cocaine laced cigarette and just didn't know it.  He is still not sure how he tested positive.  His dad made him realize that he was depressed and binge drinking to cope with his issues.  He should have got some counseling back then but not many Rangers would admit their problems.  c. Since his discharge in 1995 he has not been a heavy drinker or have been in any trouble.  He still thinks about why his friends are dead and he was not there with them. He copes with this in different ways but not with alcohol.  He lost his G.I. Bill when he was discharged so he started selling mobile homes and soon after he got a real estate license. He has been successful in real estate for about 20 years now.  d. At the age of 47 he had his first daughter K, she is now three.  He wants most in this world for his daughter to be proud of her father's military service.  He hopes the Board can find it in their hearts to grant him this upgrade.  It would make his life whole again and he could be a proud Ranger father to K his daughter.     

3.On 23 May 1991, the applicant enlisted in the Regular Army for a period of 4 yearsand 17 weeks.

4.His Personnel Qualification Record shows he served in an imminent danger payarea (Southwest Asia) from 7 to 12 December 1991.  He also obtained the rank ofSpecialist (E-4) with a date of rank of 12 December 1992.

5.The applicant’s record contained documents that show:

.21 March 1994, he was counseled for failing an Army Physical Fitness Test

.23 May 1994, he submitted a specimen for drug testing and tested positive forcocaine



6.On 24 June 1994, he accepted non-judicial punishment (NJP) under the provisionsof Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully usingcocaine.  His punishment consisted of reduction to private (E-2); forfeiture of $400.00pay per month for two months; extra duty for 45 days; and restriction to the limits of the
company area, place of worship, dining facility and medical facilities for 45 (suspended); and would be automatically remitted if not vacated before 1 September 1994.     

7.On 17 October 1994, a medical examination cleared the applicant for separationactions.  On 21 November 1994, a mental status evaluation psychiatrically cleared theapplicant for administrative separation actions deemed necessary by his chain ofcommand.

8.On 30 November 1994, he was counseled for wrongful use of cocaine (testingpositive for cocaine on 23 May 1994).  The counseling also stated “PV2 P___ I aminforming you that you will be given an Article 15 under UCMJ for wrongful use ofcocaine, on 23 may 1994, which is in violation of Article 112E, UCMJ.  This could alsobecome a chapter out of the Army.”  The applicant concurred with the counseling.

9.On 8 December 1994, a memorandum (Subject: Status Report of Alcohol DrugAbuse Prevention and Control Program (ADAPCP) Enrollment) from the ADAPCPHunter Army Air Field counselor for the applicant, stated in pertinent part:

a.The following information concerning is furnished in response to “your” request.

(1)Basis for enrollment: Cocaine Abuse, episodic
(2)Dates of treatment: 22 July 1994 to present
(3)Goal of treatment: Abstinence of alcohol and illegal substance while enrolled

b.Level of Involvement: Track II, attended individual and group counseling sessionsthat focused on effects of use, high risk situations, determining blood alcohol levels, healthy coping skills, options to use and possible negative consequences of continued abuse of alcohol or drugs. 

c.Evaluation: The applicant has concurred to the goal of treatment and gave acommitment to abstinence while enrolled in Track II.  All urinalysis tests have been negative.  Patient seems to be making good progress on making lifestyle change and seems to be a reduced risk for substance abuse. 

10.On 8 December 1994, the applicant’s commander notified him that under theprovisions of Chapter 14-12c, Army Regulation (AR) 635-200 (Personnel Separations –Enlisted Personnel), he was initiating action to separate him for misconduct,commission of a serious offense.  The reason for separation action was the applicant’spositive urinalysis for cocaine.  The applicant’s commander recommended his servicebe characterized as general, under honorable conditions, and advised him of his rights.

a.Subsequently, he was advised by his consulting counsel of the basis for hiscontemplated separation for commission of a serious offense (misconduct), its effects, and of the rights available to him.   

b.The applicant elected to submit statements in his own behalf.  In pertinent part,he asserted: 

(1)He was given inconsistent information concerning whether his companycommander would initiate separation proceedings.  The inconsistency appears to stem from his misunderstanding of regulatory requirements.  Whether AR 635-200 requires the company commander to initiate separation proceedings was immaterial; nothing in the regulation prevents the company commander from choosing to initiate separation proceedings, as he has done in this case, against a Soldier with a positive urinalysis evidencing cocaine use. 

(2)The applicant further asserts, because he "performed my duties to thehighest motivation and standards" and "met or exceeded the standards while performing my duties," he should be retained or receive an honorable discharge.  He argues that his 1,096 days of good service should not be outweighed by one mistake, and he also stated that he: 

.received NJP and served his punishment for testing positive for cocaine

.understood his chain of command was required to initiate Chapter actions,but it would not go beyond the battalion commander

.signed a counseling for the separation action on 30 November 1994;however, he tested positive on 23 May 1994

.attended counseling at ADAPCP and requested to be retained in the Army tofulfill his remaining nine month service obligation

.requested an honorable discharge if the separation action was approved



c.His First Sergeant, supervisor, and a senior noncommissioned officer providedcharacter reference statements.  In pertinent part, the members of his unit stated he could still be trusted.  His performance on duty had been nothing but exemplary, he was self-motivated, and it was a pleasure to work with him.  He also should have known that usage of any kind of drug would not be tolerated in the military and that serious punishment would be given if caught.  

d.His chain of command recommended approval of the separation action andrecommended he be issued a general discharge.  His chain of command further recommended that he not be transferred to the Individual Ready Reserve.      

e.On 12 January 1995, the legal office recommended approval of the applicant’sadministrative discharge action. 

f.The separation authority approved his discharge and directed his service becharacterized as general, under honorable conditions. 



























9.On 31 January 1995, the applicant was discharged under the provisions AR 635-200, paragraph 14-12c(2), for misconduct.  His DD Form 214 shows he completed 3 years, 8 months, and 8 days of his 4 years and 17 weeks enlistment.  His service was characterized as under honorable conditions (general).  The applicant was awarded or authorized the:•Army Achievement Medal•National Defense Service Medal•Southwest Asia Service Medal with 1 bronze service star•Army Service Ribbon•Expert Qualification Badge with Grenade Bar•Sharpshooter Qualification Badge with Rifle Bar•Expert Infantryman Badge•Parachutist Badge•Ranger Tab•British Army Parachutist Wings10.In support his case, the applicant provided an article that indicates a memorial was dedicated to the memory of five Rangers from the 75th Ranger Regiment and seven airmen from the 1st Special Operations Air Wing who died when the MH-60G Pave Hawk they were riding in crashed about 100 yards off the northern tip of Antelope Island.  The Army servicemen killed were Specialist B, Sergeant M, Sergeant First Class M Jr., and Lieutenant Colonel S, all with the 75th Ranger Regiment's 1st Battalion based at Hunter Army Air Field in Georgia.  The applicant did not provide medical documents that show he was diagnosed with mental health issues.11.The applicant is applying to the ABCMR requesting a discharge upgrade contending that the misconduct which resulted in his Under Honorable Conditions(General) discharge was caused by a severe depressive state he developed as a result of the deaths of his fiancé and fellow service members.  The Agency psychiatrist was asked to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation, the available military personnel records and the VA electronic medical record (Joint Legacy Viewer-JLV). The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s period of service. No hard copy military medical records or civilian medical documentation was provided for review.  In his application, the applicant states that suffered multiple losses while on active duty. In 1992, two of his fellow service members were killed in a helicopter accident. While he was in Ranger school, two weeks before he graduated, his girlfriend was killed in a motor vehicle accident. The following 
October, another friend he knew from Ranger school was killed. The applicant states he turned to drinking to deal with his grief and depression. One Monday, after a weekend of drinking, he tested positive for cocaine. He states that he never used drugs and must have smoked a cocaine laced cigarette.  In support of his case, the applicant has provided an article which indicates that a memorial service was held for the Rangers from the 75th Ranger Regiment and the airmen from the 1st Special Operations Air Wing who died when their helicopter crashed.  Review of the applicant’s military personnel records indicates that he enlisted in the Army on 23 May 1991. He received imminent danger pay for Southwest Asia from 7 to 12 Dec 1991. On 21 March 1994, he was counseled for failing an APFT. On 23 May 1994, he submitted a specimen for drug testing which tested positive for cocaine. He was evaluated by the Alcohol Drug Abuse Prevention and Control Program (ADAPCP) and enrolled in Track II treatment. On 8 Dec 1994, the applicant’s commander notified him that he was initiating action to separate him for misconduct-commission of a serious offense. The applicant submitted rebuttal statements on his behalf as well as positive character reference statements from his immediate chain of command. Nonetheless, his command pursued the separation action and he was separated on 31 Jan 1995 IAW AR 635-200, paragraph 14-12(c) for misconduct.  The applicant’s available military medical documents werereviewed:   -Applicant’s SF 88, Report of Medical Examination, dated 17 Oct 1994,indicates that the applicant had no permanent profiles. At the time of discharge, he didhave a temporary T3 profile for a Left Scaphoid Fracture. His physical category was “A”and he was found qualified for separation.  -Applicant’s SF 93, Report of MedicalHistory, dated 2 Nov 1994, indicates that the applicant described himself as follows: “Iam in good health except for my left wrist. It is broken. I take no medications”. Review ofthe SF 93 also indicates that the applicant answered “No” to all of the followingBehavioral Health queries: “Have you ever had or have you now: Frequent troublesleeping? Depression or excessive worry? Loss of memory or amnesia? Nervoustrouble of any sort? Periods of unconsciousness?”  -Applicant’s DA Form 3822-R,Report of Mental Status Evaluation, dated 21 Nov 1994, indicates that the applicant hada normal mental status evaluation. His mood was described as “Unremarkable”. He wasfound to have no mental or physical disability. He had the capacity to understand andparticipate in administrative proceedings.  -Applicant’s ADAPCP Status Report, dated 8Dec 1994, indicates that the applicant’s basis for enrollment was “Cocaine Abuse,episodic”. The document indicates that the applicant was enrolled in Track II of theADAPCP program (individual and group counseling). Under the Evaluation portion ofthe Status Report, the following is written: “Soldier has concurred to the goal oftreatment and gave a commitment to abstinence while enrolled in Track II. All urinalysistests have been negative. Patient seems to be making good progress on makinglifestyle changes and seems to be a reduced risk for substance abuse…”   Review ofthe VA electronic medical record (JLV) indicates that the applicant is non-serviceconnected. There are no Behavioral Health-related progress notes or diagnosesdocumented in the VA medical record.   After reviewing all of the available information, itis the opinion of the Agency psychiatrist that there is insufficient evidence to support the
applicant’s contention that severe depression due to the deaths of multiple comrades and friends led to his use of cocaine. The applicant has provided no medical documentation related to his time in service which indicates he was suffering from depression. After his positive urinalysis for cocaine, he was enrolled in ADAPCP treatment. Part of the ADAPCP intake process involves routinely screening new participants in the program for various mental illness to include depression. There is no evidence, however, in the available ADAPCP documentation indicating that the applicant was depressed at the time of his enrollment. Additionally, his DA 3822-R, Report of Mental Status Evaluation, describes his mood as “unremarkable”. Moreover, he himself, in his SF93, Report of Medical History, answered “No” to all of the Behavioral Health queries to include: “Have you ever had or have you now: Frequent trouble sleeping? Depression or excessive worry? Loss of memory or amnesia? Nervous trouble of any sort? Periods of unconsciousness? Finally, review of the applicant’s VA medical records indicates that he has never been diagnosed with a Behavioral Health condition by the VA. 

12.Army Regulation 635-200, chapter 14 establishes policy and prescribes proceduresfor separating members for misconduct.  Specific categories include minor disciplinaryinfractions, a pattern of misconduct, and commission of a serious offense, to includeabuse of illegal drugs, convictions by civil authorities and desertion or absence withoutleave.  Army policy states that an under other than honorable conditions discharge isnormally considered appropriate; however, a general, under honorable conditions or anhonorable discharge may be granted.

13.Army Regulation 15-185 (ABCMR) provides that applicants do not have a right to ahearing before the ABCMR.  The Director or the ABCMR may grant a formal hearingwhenever justice requires.  The regulation also states that, the ABCMR begins itsconsideration of each case with the presumption of administrative regularity and willdecide cases based on the evidence of record.  It is not an investigative agency.

14.The ABCMR is not authorized to grant requests for upgrade of discharges solely forthe purpose of making the applicant eligible for veterans' benefits; however, in reachingits determination, the Board can consider the applicant's petition, his service record, andhis statements in light of the published guidance on equity, injustice, or clemency.


BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was not warranted. 

1.The Board reviewed the applicant’s contentions, the Medical Advisory opinion, andthe evidence of record.  The Board considered whether there were errors in the
discharge process warranting a discharge upgrade and whether a discharge upgrade is otherwise warranted in the interest of justice.  The Board found the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under honorable conditions (general) discharge to an honorable discharge.   

2.The Board agreed with the Medical Advisory opinion that there is insufficientevidence of his medical concerns during his period of service.  Therefore, there isinsufficient evidence of a medical disability or condition that would support a change tothe character and/or reason for the discharge in this case.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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. 


ADMINISTRATIVE NOTE(S): 

Not Applicable 

REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three 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 three-year statute oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.Army Regulation 15–185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the Army Board for Correction of Military Records (ABCMR).

a.Paragraph 2-9 states that the ABCMR begins its consideration of each case withthe presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR is not an investigative agency.   

b.Applicants do not have a right to a hearing before the ABCMR.  The Director orthe ABCMR may grant a formal hearing whenever justice requires. 
3.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forththe basic authority for the separation of enlisted personnel.

a.Chapter 14 of this regulation establishes policy and prescribes procedures forseparating 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, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 

b.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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. 

 c.  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. 
 
4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. 
   
     a.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.   
     
     b.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 
 
//NOTHING FOLLOWS//