IN THE CASE OF: BOARD DATE: 17 March 2016 DOCKET NUMBER: AR20140020370 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, in effect, defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel reconsideration of the request to upgrade the applicant’s bad conduct discharge (BCD). He requests at least a discharge under other than honorable conditions (UOTHC) based upon the principle of clemency. 2. Counsel states clemency is appropriate because the BCD was too harsh and therefore unjust. Furthermore, there were mitigating circumstances. These were the unit leaders overlooking and downplaying his untreated mental illness and his knee injury when the events that led to his BCD occurred. An upgrade will allow the applicant to receive benefits from the Department of Veterans Affairs (VA) after suffering without those benefits for almost 30 years. He cites the case of Fuller v. Winter as an example of a discharge upgrade because the individual had been adequately punished because he had been discharged without retirement benefits for 5 years. Counsel also states: a. The applicant was unable to hold down a steady job because of untreated mental illness and chemical dependencies. He was homeless from 1986 to 2001. b. On 15 March 2001, he entered a detox program and began a remarkable recovery. He entered a follow-up program and then was transferred to a counseling center for further treatment. c. He is residing in the Supported Housing Program through Phoenix Houses of Long Island. He has been drug and alcohol free for over 13 years. d. After receiving treatment for his mental illness and completing substance abuse rehabilitation he – * completed a Marketing Certificate Program * earned a Master of Business Administration (MBA) * considered a doctorate in public health * considered a Doctor of Philosophy (PhD) * is enrolled at Hofstra e. Also he – * is also working with two Hofstra law students to start a nonprofit corporation, Above Ground Awards, Inc. * founded Above Ground Unlimited which has assisted various groups and organizations with fund raising projects * has participated multiple times in the Annual National Disabilities Mentoring Day with New York City Mayor Michael Bloomberg f. These post service accomplishments show the sort of Soldier the applicant would have been had it not been for his problems. 3. Counsel provides exhibits (tabbed) A – HH as follows – A. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty). B. Michigan State University – Certification of Degree Bachelor of Arts (BA) in Personnel Administration, on 3 September 1976 and 30 December 2002 confirmation of this BA. C. Department of the Army (DA) – Certificate of Training for 30 hours in basic leadership. D. Headquarters and Headquarters Company (HHC), U.S. Army Communications–Electronics Installation Battalion, Fort Huachuca, AZ Memorandum for Record, dated 13 January 1984. E. DA Form 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)), nonjudicial punishment (NJP), dated 13 January 1984. F. DA Form 4126 (Bar to Reenlistment Certificate), dated 20 April 1984, for the NJP and repeated failure to pay just debts, revocation of his security clearance and various other acts of misconduct and HHC, U.S. Army Communications – Electronics Installation Battalion, Fort Huachuca, AZ memorandum, dated 21 May 1984, justifying the bar to reenlistment. G. U.S. Army Communications – Electronics Installation Battalion, Fort Huachuca, AZ (19 October 1984) 2nd endorsement on applicant’s request for discharge for the good of the service in lieu of trial by court-martial – the executive officer recommended disapproval. H. Applicant’s 19 October 1984 request for discharge for the good of the service in lieu of trial by court-martial and the commander’s disapproval thereof. I. Headquarters, Fort Huachuca, AZ, Special Court-Martial (SPCM) Order Number 1, dated 5 February 1985, showing the applicant then a specialist four (pay grade E-4) was tried and found guilty of – * three specifications of absence from his place of duty and one specification of willful disobedience of a commissioned officer * two specifications of willful disobedience of a superior ranking noncommissioned officer (NCO) * one specification of breaking restriction and one specification of offering violence to a commissioned officer * he was sentenced to reduction to pay grade E-1, confinement for 5 months and a BCD-U.S. Army Correctional Activity, Fort Riley Kansas, SPCM Order Number 63, dated 14 March 1986, shows the finding and sentence had been affirmed and the BCD was ordered executed J. Hofstra University Certificate – for completion of 18 credits of coursework beyond a bachelor’s degree, dated December 2003. K. Long Island University – diploma for an MBA, dated 8 May 2005. L. Suffolk County Community College, Corporate Training Center – Certificate of Entrepreneurship, dated 4 April 2007. M. University of Phoenix letter, dated 30 September 2005 – shows the applicant was accepted as a student in the Doctor of Health Administration program - with supporting documents attached. N. Long Island University – letter of acceptance as a Ph.D. candidate in the School of Library and Information Science. O. Behind the 8 Ball: Transformation of (the Applicant) – a three-page autobiography. P. Standard Form 600 (Chronological Record of Medical Care), dated 7 September 1984. Q. Standard Form 600 (Chronological Record of Medical Care), dated 27 November 1984. R. Hempstead General Medical Center Certificate, dated 8 April 2001 – for completion of "Triple Nursing Education Center." S. Quannacut at Eastern Long Island Hospital – Patient /Counselor Discharge Plan-Instructions (substance abuse treatment discharge plan), dated 9 May 2001. T. Nepenthe Counseling Center, letter dated 10 December 2003, stating the applicant enrolled on 15 May 2001 for treatment of depression and chemical dependency. U. Nepenthe Counseling Center, certificates dated October 2001, November 2001, April 2002 and September 2004. V. Phoenix House, letter dated 15 August 2005, stating the applicant had been a resident since April 2002 and letter dated 14 October 2010, stating the applicant had been a resident since August 2007. W. County of Suffolk, NY, letter dated 6 February 2008, stating the applicant had been a mental health client for psychotherapy and medication management since October 2008 and a note dated 12 March 2013 on an Official New York State Prescription form stating the applicant had been a patient since 18 May 2007. X. Social Security Administration, Office of Hearings and Appeals, decision dated 7 May 2005, finding the applicant disabled since 16 May 2002. Y. Applicant’s undated description of his business Above Ground Unlimited. Z. Six letters from organizations either thanking or recommending the applicant as a fund raising partner/supplier. AA. Long Island University, letter dated 17 October 2011, recommending the applicant and his business. BB. Email, dated 25 March 2012, from an associate professor of marketing and international business recommending the applicant and his business. CC. Photograph of the applicant with New York City Mayor Bloomberg and an October 2007 certificate for the applicant’s participation in Disability Mentoring Day. DD. Five photographs of the applicant with New York City Mayor Bloomberg EE. Suffolk County Community College, 12 December 2008 Certificate of Appreciation. FF. Service medical records, dated October 1981 through January 1985. GG. Certificate of Incorporation of Above Ground Awards, Inc. – a not for profit corporation to provide scholarships for underprivileged youth. HH. Email, dated 18 November 2014, inviting the applicant to represent Michigan State University as a volunteer at college fairs in his geographic area. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130002895, on 19 November 2013. 2. On 27 October 1981, the applicant was a 29 year-old graduate of Michigan State University. He enlisted in the Regular Army, in pay grade E-3, for 3 years and guaranteed training in military occupational specialty 72G as an Automatic Data Telecommunications Center Operator. 3. He was advanced to pay grade E-4 on 5 April 1982. 4. A report of medical history, dated 27 July 1982, noted “Marijuana last used 4 July 1982. First used this substance age 19. Has used marijuana about three times a month since age 19 yrs.” 5. On 29 December 1983, he was counseled for nonpayment of just debts. He refused to sign the counseling. 6. On 17 January 1984, the applicant received NJP for absence from his place of duty. The punishment consisted of a suspended reduction to pay grade E-3, forfeiture of $181 for 1 month, and 14 days extra duty. The applicant appealed and the appeal authority suspended the forfeiture. 7. He was barred from reenlistment, on 20 April 1984, because of the NJP, failure to pay just debts, poor conduct, and substandard performance. His security clearance was revoked on 7 May 1984. 8. He contested the bar to reenlistment by claiming that there were misunderstandings making it appear he had bad debts when in fact he did not. On 1 June 1984, the applicant recanted and admitted that the debts were valid. 9. On 19 October 1984, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, the applicant requested discharge for the good of the service in lieu of trial by court-martial for offenses of attempted escape, willful disobedience of a commissioned officer, willful disobedience of an NCO and two specifications of obstruction of justice. 10. A 22 October 1984 memorandum from the Fort Huachuca Trial Defense Service related that due to a conflict of interest they had been unable to help the applicant with “his Article 15 and the ramifications of turning it down.” It went on to say that the applicant had not been provided with documentation and therefore could not be properly counseled about this when he traveled to Fort Bliss, Texas for legal advice. However, if he had been properly counseled he would not have refused the NJP. 11. In a 24 October 1984 endorsement on the applicant’s Chapter 10 request, the battalion executive officer related that, as the then acting commander, he had read the Article 15 charges on 12 September 1984 to the applicant in the presence of the command sergeant major and to the company commander. He had also explained that should the applicant refuse the NJP the battalion would seek prosecution at a court-martial. He had handed the applicant a copy of the DA Form 2627 and copies of the supporting documents. He allowed the applicant to travel to Fort Bliss to seek counsel. When the applicant returned he repeatedly stated that he understood the consequences but wanted a trial by court-martial. The battalion executive officer added, “His conduct since his refusal of the Article 15 has been more hostile and disruptive and has resulted in far more serious charges than the ones he faced under the Article 15.” 12. The applicant’s Chapter 10 request was denied. 13. Fort Huachuca, SPCM Order Number 1, dated 5 February 1985 shows the applicant, then a specialist four (pay grade E-4), was tried on 19 November 1984 and found guilty of – * three specifications of absence from his place of duty - (pled guilty) * one specification of willful disobedience of a commissioned officer - (pled not guilty) * two specifications of willful disobedience of a superior ranking NCO - (pled guilty to one) * one specification of breaking restriction - (pled guilty) * one specification of offering violence to a commissioned officer - (pled not guilty) 14. He was sentenced to reduction to pay grade E-1, confinement for 5 months and a BCD. The convening authority approved the findings and sentence and, except for the BCD which was pending appellant review ordered the sentence executed. 15. Following confinement, the applicant was placed on excess leave. U.S. Army Correctional Activity, Fort Riley Kansas, SPCM Order Number 63, dated 14 March 1986, shows the finding and sentence had been affirmed. Article 71c UCMJ having been complied with the BCD was ordered executed. 16. The applicant was discharged on 25 March 1986. He had 4 years and 23 days service with 4 months and 2 days of lost time and 415 days of excess leave. 17. The available medical records show – * the applicant’s 22 October 1981 enlistment physical disclosed a pre-service knee injury and surgery * he complained of knee pain throughout his career starting in November 1981 during the 3rd week of basic training; this condition eventually led to surgery in April 1994 * on 18 June 1984 the doctor discussed the applicant’s psychological attitude about the knee. The applicant stated that he did not plan to reenlist (he had already been barred from reenlistment) but was concerned about the cost of his prescription pain killers after discharge; the doctor observed that the applicant was quite fixated about the knee * in August 1984 he complained that the chain of command was disregarding his physical profile 18. There is no available evidence to show the applicant raised any issue of medical neglect or mental health issues as matters in mitigation or extenuation during the sentencing phase of his court-martial. 19. A 31 January 1985 medical examination for separation found him qualified for separation with a physical profile of 111111. An associated mental status evaluation (MSE) shows the applicant’s behavior was normal, he was alert and fully oriented, his mood or affect was unremarkable, the thinking processes clear, thought content normal and memory good. In the evaluator’s opinion the applicant had the mental capacity to understand and participate in the proceedings. He was mentally responsible and he met retention standards. 20. Counsel’s submissions in support of this request include. a. Exhibit O. This brief (three pages-double spaced) autobiography entitled Behind the 8 Ball: Transformation of (the applicant) reads: Growing up in Flint Michigan, loving school, singing Temptations’ songs on the corner – playing hide and seek with my sisters was the beginning of life in the Auto Capitol of the World. General Motors, Ford, Chrysler, Bendix, Whirl Pool, Kellogg Cereals, all were companies I dreamed of working with one day. By the age of 14, most of my friends (were) smoking cigarettes and drinking at the time, I had no interest, skipping school was not part of my child hood; I enjoyed my teachers and really wanted to learn about history. By twelfth grade I participated in basketball, football, track and field and weight lifting. Achieving first-string position and earning varsity athlete status. Developed friendships with college students, eventually inspired me to continue my education. September 1972, I was accepted and enrolled in Michigan State University College of Business. With Michigan State University having a student population of over 25,000 students I found a home away from home in a world where I survived 4 years of social and experimentation with Alcohol and Drugs eventually graduated with a Bachelor of Arts in Business with a major in Personnel Administration. Alcohol and Drugs would stay in my life for the next 29 years. My first job offer was my dream job, Production Supervisor, Saginaw Steering Gear, General Motors. Alcohol and Drugs convinced me to leave General Motors after 4 years. Taking leave of absence to pursue my Master of Business I was not able to complete my studies due to alcohol and drugs. I resigned from General Motors in 1981 believing a computer operator job in the United States Army would benefit me. I sought a Top Secret Clearance with $22,000 to further my education upon completion. Bar(ed) from reenlistment due to mental illness and alcohol and drug use. Eventually disobeying a lawful order by my commander to paint rocks sitting on my but tops due to a medical profile limiting my standing and lifting. With less than two months before leaving military I refuse to follow orders I believed degraded me as a man. I was given a bad conduct discharge and lost my education benefits. Leaving the military I went to New Jersey to spend time with my college roommate. Finding a job as s production supervisor in a plastic industry, my alcohol and drug use escalated resulting in resignation from my job. Working my way into incarceration for shoplifting, receiving stolen property, traces of controlled dangerous substances, leading to weeks and months of jail time. Eventually doing 1 and 1/2 years all together in the State of Jersey. Leaving New Jersey, with alcohol and drug problem with extreme signs of depression I spent the next 12 years in New York City. Between 1994 and 2001 seven years was spent in Spanish Harlem, NY using alcohol and drugs and depression medication seven days a week sunup until sundown. In 1997 charged with conspiracy to sell drugs to an undercover officer, given probation, violating probation eventually spending another 1 and 1/2 years in State Prison system. Continuing my use of alcohol and drugs from 1972 to 2001, total 29 years. Decided to change my thinking allowed me to stop choking my potential to grow. I will always remember my stages of depression and anxiety and stress caused by my ability to not focus on coping skills that would allow my life to have a balance of needs and wants. March 15, 2001, I left New York City for Long Island, New York where my rehabilitation and recovery from alcohol and drugs and depression would start first detox in Hempstead Medical, 9 days, next 28 days in Greenport, Long Island. My journey would involve 12 to 14 months of outpatient MICA treatment and housing in Deer Park, Long Island. Continue treatment in evening group session living in alcohol and drug free environment balancing my depression with medication. As of July 15, 2004, I achieved 40 months in rehabilitation of mental-emotional-physical-spiritual state of mind and body. 40 months without alcohol and drugs and over 7 years of not getting involved with breaking the law. I completed Marketing Certification from Hofstra University with 18 credits complete with 3.5 GPA. My current plan will seek support to pursuit PhD in June 2005. Seeking fellowship, grants and internship. b. Exhibit Y is the applicant’s description of his company. He relates that it assists both non-profit organizations, private companies and individuals by providing creative and new products such as clothes, posters, oils, stainless steel bracelets and much more. 21. Fuller v. Winter was cited by counsel as a similar case. In this case the Board for Correction of Naval Records recommended allowing the Serviceman to retire as a matter of clemency in the case of an individual who was approximately 2.5 years short of being eligible to retire and who had been selected for promotion who was administratively discharged with a general discharge. 22. The Table of Maximum Punishments of the Manual for Courts-Martial shows that the authorized punishment for offering violence to a commissioned officer includes a dishonorable discharge and 10 years confinement; for willful disobedience it is 5 years confinement and a dishonorable discharge. DISCUSSION AND CONCLUSIONS: 1. Counsel requests upgrade of the BCD to at least a discharge UOTHC based on clemency because the sentence was too harsh and the applicant has been without VA benefits. There were mitigating factors because the chain of command ignored the applicant’s injured knee problem, and his untreated depression and substance abuse. 2. The sentence was not too harsh. The applicant could have received a dishonorable discharge and years of confinement for any one of several of the offenses for which he was convicted. He wasn’t even tried for many of the offenses he committed, such as lying in writing about his unpaid debts. 3. Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 4. Counsel failed to provide or point out any evidence that the chain of command ignored any health condition that would mitigate the applicant’s misconduct and none is apparent in the record. 5. The available medical records, including those submitted by counsel, do not contain any evidence that he had any medical condition that would mitigate his behavior. The separation medical examination included a mental status evaluation that found the applicant’s behavior was normal. He was alert and fully oriented, his mood or affect was unremarkable, the thinking processes clear, thought content normal and memory good. In the evaluator’s opinion the applicant had the mental capacity to understand and participate in the proceedings. He was mentally responsible and he met retention standards. 6. It is impossible to conclude that the applicant’s chronically sore knee justified his misconduct. Very little was written in the medical record about any mental health issue, except that the applicant was fixated on the knee. 7. Substance abuse and addiction do not mitigate misconduct as is illustrated by the well-known fact that alcoholics go to jail for drunk driving. 8. The applicant’s post service behavior and conduct, including that he achieved sobriety about 20 years after the discharge, are noted. The evidence provided shows the applicant to be a contributing member of society who seems to be attracted to educational achievement, entrepreneurial pursuits, and charitable causes. Although these factors undoubtedly benefit society, in and of themselves, they are not so exceptionally meritorious as to warrant the requested relief. 9. The applicant had 50 days of lost time and 415 days of excess leave included in his 4 years and 23 days of military membership. Furthermore, the applicant had completed only about 2 years and 2 months of service when he started getting into trouble in January 1984. He actually served only 2 years, 7 months, and 3 days of more or less worthwhile service. He was ultimately separated with a BCD that resulted from a trial by court-martial that he had insisted upon. 10. Counsel cited Fuller v. Winter as a similar case, but that case involved a successful careerist who had completed about 17.5 years of exemplary service and been selected for promotion when he was administratively discharged. It had nothing to do trial by court martial or with VA benefits. 11. The Board reviews and evaluates every case on its own merits, the evidence of record and the information provided by the applicant.  The court case cited is not so similar to the applicant’s situation so as to be even slightly instructive. 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 to amend the decision of the ABCMR set forth in Docket Number AR20130002895, dated 19 November 2013. _______ _ 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) AR20140020370 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140020370 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1