IN THE CASE OF: BOARD DATE: 25 September 2020 DOCKET NUMBER: AR20200001867 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 15 November 2019 * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 11 February 1982 and 23 March 1982 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 22 February 1983 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 he was in pain and sought treatment for that pain (right shoulder). He has had surgery on his shoulder numerous times since his return to the civilian world. He requests a review of his administrative and medical evaluations and requests the Board note the change after his attempts to seek proper medical treatment while in the Army. 3. The applicant enlisted in the Regular Army on 16 February 1979. 4. An SF 600, dated 11 February 1982, indicates the applicant’s shoulder was injured when a cargo hatch struck him. He stated his arm was starting to feel numb and the numbness was progressing down his arm. 5. The applicant received a general officer memorandum of reprimand (GOMOR) on 2 September 1982, which stated: a. After reviewing an investigation of the reception of marijuana, the facts remained that it could not be substantiated that the applicant physically possessed the marijuana, although his wife did send it to him. The search was conducted improperly as the applicant’s rights were not read to him before the search. b. The undisputable fact still remained that the applicant did receive a package in the mail that contained 25.18 grams of marijuana. His wife did ship the package. c. A copy of the reprimand would be placed in the applicant’s official file. 6. The applicant accepted non-judicial punishment on 1 October 1982, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for sleeping while on duty on or about 4 September 1982. 7. In a memorandum from the Clinical Director, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), dated 11 January 1983, the applicant’s commander was notified that the applicant was determined to be a rehabilitation failure. The basis for this action was: * rehabilitation transfer due to drug related incident * child advocacy investigation which indicated chronic drug use in a family setting * mailing prohibited material through the postal system * positive test for marijuana on 10 December 1982 8. The applicant's commander formally recommended the applicant's separation from service on 11 January 1983, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9, by reason of rehabilitative failure under the ADAPCP. 9. The applicant's commander notified the applicant on 3 February 1983 that he was being recommended for separation from service under the provisions of Army Regulation 635-200, Chapter 9, based on his chronic drug abuse problem and no effort for rehabilitation. 10. The applicant acknowledged receipt of the notification memorandum on 3 February 1983 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He acknowledged his understanding and elected not to submit a statement in his own behalf. 11. The separation authority approved the recommended discharge and directed that the applicant be issued an under honorable conditions (general) discharge. He further advised that if medical authorities determined the applicant was to be reassigned through medical channels, the necessary liaison would be established with medical channels. 12. The applicant's record is void of a determination from medical authorities as mentioned in the separation authority's discharge approval. 13. The applicant was discharged on 22 February 1983, under the provisions of Army Regulation 635-200, Chapter 9, by reason of drug abuse – rehabilitation failure. His DD Form 214 confirms his service was characterized as under honorable conditions. 14. The Board should consider the applicant's statement and evidence in accordance with the published equity, injustice, or clemency determination guidance. 15. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Joint Legacy Viewer (JLV) and made the following findings and recommendations. The applicant is service connected for an Anxiety Disorder. This diagnosis does not mitigate being a rehabilitative failure to include child exposure to chronic drug use, receiving drugs via the postal system, and a positive urinalysis. 2. The applicant is 70% service connected for Anxiety Disorder. The applicant has an extensive history with the Department of Veterans Affairs typically related to suicidal or homicidal ideation as well as legal difficulties. The medical record reflects multiple diagnoses to include Panic Disorder, Major Depressive Disorder, Bipolar Disorder, Post- Traumatic Stress Disorder (PTSD), Cannabis Dependence, and Alcohol Abuse. While diagnosed with PTSD, the record is void of the trauma serving as the basis for the diagnosis. Moreover, the applicant is service connected for Anxiety rather than PTSD; the trauma was not service related. BOARD DISCUSSION: 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, his record of service, the frequency and nature of his misconduct. and the reason for his separation. The Board considered the review and conclusions of the ARBA Medical Advisor based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the ARBA Medical Advisor regarding his misconduct not being mitigated by a medical condition. 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, USC, 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 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or under honorable conditions unless the Soldier is in entry-level status. 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) AR20200001867 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001867 6 ABCMR Record of Proceedings (cont) AR20200001867 5