IN THE CASE OF: BOARD DATE: 15 October 2020 DOCKET NUMBER: AR20200001085 APPLICANT REQUESTS: In effect, his under honorable conditions (general) discharge be upgraded to an honorable discharge so he can receive the benefits that he believes he is entitled to. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552), dated 28 October 2019 * SGLV 8286 (Servicemembers' Group Life Insurance Election and Certificate), dated 5 March 2002 * Enlisted Record Brief, dated 21 January 2003 * Orders 094-0221, issued by Headquarters, III Corps and Fort Hood, Fort Hood Texas on 4 April 2003 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 April 2003 * DA Form 2-1 (Personnel Qualification Record – Part II) * Pages 1 and 2 of The Center for Health Care Services – AMH Psychiatric Evaluation & Diagnosis Entry Form, dated 24 May 2011 * Address Change Statement, dated 24 February 2020 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. His DD Form 214 states he was discharged under honorable conditions but he was not given any benefits. He suffered from some mental issues during the period he was on active duty, due to a sergeant that would not allow him to receive help while he was enlisted. Now that he is no longer in the Army, he is still dealing with those issues. He has never been able to talk about his issues until recently and he needs help. b. He has been receiving help through a Veteran's group and he was notified that he is entitled to benefits, especially since he was diagnosed during his time in service. He was being mentally and physically abused by a higher ranking figure, which caused a lot of his mental issues. He is trying to receive benefits so he can receive the help that he needs. 3. The applicant enlisted in the Regular Army on 27 September 2001. He completed training in military occupational specialty 13B10 (Cannon Crewmember). 4. A DD Form 2624 (Specimen Custody Document – Drug Testing) shows the applicant provided a urine specimen on 17 April 2002 during a random unit level urinalysis, which tested positive for cocaine use. 5. The applicant signed of a Rights Warning Procedure/Waiver Certificate on 2 July 2002, acknowledging that an investigator from the U.S. Army Criminal Investigation Command (CID) wanted to question him about the wrongful use, possession and distribution of a controlled substance. The applicant acknowledged he was told he had a right not to answer any questions, that anything he said or did would be used as evidence against him in a criminal trial, that he had a right to speak privately with a lawyer before, during, and after questioning, and that if he was willing to discuss the offense(s) under investigation with or without a lawyer, he had a right to stop answering question at any time. The applicant acknowledged that he understood his rights and he made the election to willingly discuss the offense(s) under investigation and to make a statement without talking to a lawyer first and without having a lawyer present. 6. In a Sworn Statement, dated 2 July 2002, the applicant admitted to using cocaine on 15 April 2002 while he was at a house party in. He denied ever selling any illicit drugs while he was in the Army. 7. A CID Form 94 (Agent's Investigation Report), dated 2 July 2002, shows the Staff Judge Advocate concurred that there was probable cause to believe the applicant committed the offense of wrongful use of cocaine. 8. The CID Report of Investigation, dated 8 July 2002, shows the investigation was being terminated because the special agent in charge determined that furtherance of the investigation would be of little or no value and the leads remaining to be developed were not significant. 9. The DA Form 8003 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Enrollment) shows the applicant was command referred to ADAPCP on 31 July 2002, as a result of his positive urinalysis. 10. The applicant accepted nonjudicial punishment (NJP) on 5 September 2002, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine between 15 April and 17 April 2002. 11. A DD Form 2624 shows the applicant provided a urine specimen on 11 September 2002, which tested positive for cocaine use. 12. The applicant was counseled on three separate occasions on 17 September 2002. His DA Forms 4856 (Developmental Counseling Forms) shows he was counseled for failure to report for extra duty, failure to report to work, and breaking restriction. 13. A DD Form 2624 shows the applicant provided a urine specimen on 17 September 2002, which tested positive for cocaine use. 14. The applicant was counseled on 27 September 2002. His DA Form 4856 shows he received separation counseling. He was told that Army Regulation 600-85 (The Army Substance Abuse Program) required that separation proceedings be initiated for all first time drug offenders. He was told he was being recommended for separation based on his positive urinalysis results from his test administered on 11 September 2002. He was told he had been scheduled for the first part of his chapter physical on 8 October 2002. 15. The applicant's DD Form 2807-1 (Report of Medical History), dated 2 October 2002 shows he experienced problems with his toe, left knee and he had back aches while he was in the Army. His DD Form 2808 (Report of Medical Examination) shows he had no defects or diagnoses, he was qualified for service, and he was not recommended for further specialist examinations. 16. The applicant underwent a Mental Status Evaluation on 17 October 2002, to determine whether he should be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for misconduct. The attending psychiatrist determined he had the mental capacity to understand and to participate in proceedings, he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3, and he was mentally responsible. The attending psychiatrist psychiatrically cleared the applicant for any administrative action deemed appropriate by his command. 17. The applicant's commander notified him on 6 November 2002 that he was being recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense. After consulting with counsel, he acknowledged receipt of the notification and waived his right to have his case considered before an administrative separation board contingent upon his receiving a characterization of service or description of separation no less that under honorable conditions (general). He made an election not to submit a statement in his own behalf. 18. The applicant's commander formally recommended the applicant's separation from service on 6 November 2002, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct. 19. The applicant's official record contains a Waiver of Arraignment, issued in the District Court of. This document shows the applicant waived all requirements of a formal arraignment. However, the document does not disclose the nature of charge that was pending against him or the range of punishment attached to the charge. 20. The applicant was notified by his company commander on 14 January 2003 that he was being placed on administrative restriction to his place of duty during the duty days and the limits of the Fort Hood installation during all other times. The applicant was told that the restriction was due his commander's assessment that he was a high risk for further incidents of misconduct and due to pending UCMJ action being utilized to prevent further serious misconduct. He was told that his acts of misconduct included the following indicators that were considered prior to the imposition of administrative action: * use of illegal drugs * reckless driving * driving under the influence of illegal substances * breaking restriction * being absent without leave (AWOL) 21. The applicant was counseled again on 16 January 2003 for breaking restriction and for being AWOL. 22. The applicant signed a DA Form 3081-R (Periodic Medical Examination (Statement of Exemption)) acknowledging that there had been no significant change to his medical condition since the accomplishment of his previous medical examination. 23. The separation authority approved the recommendation for discharge on 18 February 2003 and directed that the applicant be issued a DD Form 257A (General Discharge Certificate). 24. The applicant went AWOL again on 21 April 2003. 25. The applicant was discharged in absentia on 23 April 2003, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), for misconduct – commission of a serious offense. His DD Form 214 confirms his service was characterized as under honorable conditions (general). 26. The applicant provides only two pages of an eleven page AMH Psychiatric Evaluation & Diagnosis Entry Form. This form is void of an actual diagnosis for the applicant. 27. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those mental health conditions or experiences which may have contributed to the misconduct that led to the discharge. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim that he suffered from some mental issues during the period he was on active duty, but found no documentary evidence corroborating his claim, such as an in-service or post-service diagnosis of a behavioral health condition. The Board found insufficient evidence of in- service mitigating factors for his misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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// ABCMR Record of Proceedings (cont) AR20200001085 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001085 7 ABCMR Record of Proceedings (cont) AR20200001085 6