BOARD DATE: 1 May 2018 DOCKET NUMBER: AR20160007103 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration I BOARD DATE: 1 May 2018 DOCKET NUMBER: AR20160007103 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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR1999019343 on 18 March 1999. Specifically, he requests an upgrade of his under other than honorable conditions (UOTHC) discharge and a personal appearance before the Board. 2. The applicant defers all statements to counsel. 3. The applicant provides evidence rendered by civilian counsel in a letter and exhibits as mentioned below. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the applicant's UOTHC discharge be upgraded to an under honorable conditions (general) discharge. 2. Counsel states, in effect, that: a. The Army failed to follow the rules and regulations by failing to enroll the applicant in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). Had he been enrolled prior to the events leading to his discharge, he could have been rehabilitated and he could have completed a successful career. b. The applicant had nearly eight years of faithful and honorable service, during which time he sustained injuries and other medical conditions that affect him today. He is unable to obtain veteran's benefits for these conditions due to his type of discharge. By upgrading his discharge to a "general," he would become eligible to obtain certain benefits and vastly improve his quality of life. c. The applicant acknowledges the seriousness of his misconduct but has led a productive life since his discharge. He has participated in community outreach programs, he volunteered his time, and overall he has been a positive influence on society. d. In accordance with Army Regulation 600-85 (ADAPCP), effective 3 December 1986 and applicable during the applicant's period of service, "Commanders and supervisors must confront suspected alcohol or other drug abusing individuals under their supervision with the specifics of their behavior, inadequate performance, or unacceptable conduct," and must "provide the necessary support for motivating personnel to recognize the advantages of obtaining assistance." Section 3-7(b) states that commanders will refer all individuals suspected or identified as alcohol or drug abusers to the ADAPCP, "including those identified through urinalysis and blood alcohol tests." Section 4-1(a) emphasizes the fact that the rehabilitation of drug or alcohol abusing individuals "is a command responsibility," and that "they will ensure that all community resources are used in assisting individuals during rehabilitation." e. Also, section 4-14(e) of the current, updated version of Army Regulation 600-85, effective 28 December 2012, states that "all soldiers who test positive for illicit drug use must be evaluated for drug dependence." Under section 7-5(b), any soldier "identified as an illegal drug abuser through drug testing requires a mandatory referral to the ASAP (Army Substance Abuse Program) counseling center" within five duty days upon receipt of the positive drug test results. Sections 7-9(3)(b) and (c) highlight the unit commander's affirmative obligation to refer these individuals to the ASAP counseling center and staff for mandatory screening. f. After receipt of a positive urinalysis test conducted on 23 July 1986, the Army neglected to follow its own procedures established by the regulation of 1986 that required his unit commander to place him in the ADAPCP program. According to a report given by the Office of the Inspector General dated 12 August 1987 (the "Report"), his allegation that he was not entered into the ADAPCP program in a timely manner following an earlier positive urinalysis result was substantiated. The Report elaborated on the details of the delay that occurred due to a miscommunication between the unit and the Community Counseling Center and states that the "disconnect in communication" was "subsequently corrected." However, he was ultimately never placed in the ADAPCP program. The Army's conduct after the first positive urinalysis test also violated the current procedures under the updated Army Regulation 600-85 of 2012, since he was never referred to the ADAPCP to be evaluated for drug dependence within five duty days of receipt of the results. Throughout the entire ordeal, he conveyed to his commanding officers several times that he was drug dependent and needed the help that the ADAPCP program could provide. It is his firm belief that if he had received the appropriate assistance at that time, he could have continued to have a faithful and fulfilling military career. g. This violation is further highlighted by the fact that the unit first sergeant (1SG) was deeply involved to the point of creating a perception of favoritism with incidents of a non­commissioned officer ("NCO") who was caught driving while intoxicated. The Report states "the 1SG and chain of command's main concern, appropriately, was to rehabilitate and save an otherwise good soldier." This begs the question as to why the same consideration and concern was not given to him after his first positive urinalysis test, which was arguably a comparable situation to that of the NCO. 3. Counsel provides numerous documents, tabbed and organized as follows: * Exhibit A – Army Regulation 600-85, effective 3 December 1986 * Exhibit B – Army Regulation 600-85, effective 28 December 2012 * Exhibit C – Inspector General's Report, dated 12 August 1987 * Exhibit D – Performance Reports, Awards, and Recognition * Exhibit E – Criminal History Record Search, dated 4 August 2015 * Exhibit F – Letters of Support * Exhibit G – Medical Records * Exhibit H – Applicant's Resume * Exhibit I – Prior Honorable discharge record * Exhibit J – Applicant's personal Statement CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR1999019343 on 18 March 1999. 2. The applicant provides a new argument and documents that were not considered during the initial review of his request. Therefore, the new argument and documents warrant consideration by the Board. 3. The applicant enlisted in the Regular Army on 2 October 1979 and executed an immediate reenlistment on 29 March 1984. The highest rank/grade he attained during his period of service was sergeant (SGT)/E-5). 4. The applicant's record contains a U.S. Army Criminal Investigation Command (CID) report with associated documents. a. On 31 October 1986, an investigation was initiated during a joint operation being conducted by the Saarbrucken German Police and the Pirmasens Drug Suppression Team. The investigation involved a residence identified as a location where Third Country Nationals distribute illicit drugs to members of U.S. Forces, disclosed that applicant and two other Soldiers were seen entering the residence, and exiting the residence shortly afterwards. At which time, they were apprehended by the German Police, and found in possession of about 10 grams of hashish. The total estimated street value of the drugs seized was $350.00. CID indicated that the applicant violated Article 112a of the Uniform Code of Military Justice (UCMJ) – Wrongful distribution, possession and use of hashish, and he violated a Lawful General Regulation (U.S. Army Europe (USAREUR) Regulation 632-10 (Possession of Drug Paraphernalia). b. On 1 November 1986, CID briefed the applicant's commander about the investigation. c. On 14 January 1987, CID coordinated the investigation with Captain (CPT) GAM, at the Staff Judge Advocate's office. CPT GAM opined that the applicant and the other two Soldiers should be titled as subjects of the CID report for Wrongful Possession and Use of Hashish/Violation of Lawful General Regulation USAREUR Regulation 632-10. d. A review of the criminal information files from CID and the Pirmasens Military Community Provost Marshal's Office revealed that the applicant was previously titled as a subject of wrongful possession and use of hashish, on 12 August 1983. e. Two DA Forms 5180-R (Urinalysis Custody and Report Record) show the applicant tested positive for marijuana as a result of urinalysis testing conducted on 9 October 1986 (Julian date 6282) and on 3 November 1986 (Julian date 6307). 5. The applicant submitted an Inspector General letter, dated 12 August 1987 (Exhibit C), in response to the applicant's Member of Congress inquiry on 3 February 1987. It states in pertinent part: a. The inquiry did not substantiate the alleged favoritism by the unit 1SG toward an NCO involved in a driving while intoxicated incident. b. The inquiry did substantiate the allegation that the applicant was not entered into the ADAPCP program in a timely manner, following one of his earlier positive urinalysis results, despite the fact that the unit followed the prescribed entry procedures for ADAPCP. The applicant's enrollment was delayed due to the Community Counseling Center being unaware that the unit 1SG's ability to respond on behalf of the commander. This disconnect in communications was subsequently corrected. c. The allegation could neither be substantiated nor refuted that the unit failed to notify (Applicant) in a timely matter that he had tested positively during drug urinalysis tests. The initial urinalysis, taken on 23 July 1986, was certified positive on 15 August 1986. Given the two to three day mailing time, the information as believed to have arrived in the unit by 20 August 1986, and action initiated at the Community Counseling Center on 5 September 1986. A second urinalysis test involving the Soldier was taken on 9 October 1986, with positive results being certified on 3 November 1986. The second positive certification resulted in the apprehension of (Applicant) by CID. d. At the time of the inquiry, the commander was considering the referral of court-martial charges against (Applicant) in lieu of discharge action procedures, following his third failure of a drug urinalysis test. Of the deficiencies, (Applicant) presented that were substantiated, chain of command corrective action was taken to address them. 6. The applicant's record contains and he submitted a memorandum, dated 28 October 1986 (Exhibit D), showing his battalion commander recommended approval of a proposed separation under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c (commission of a serious offense). He further recommended the applicant be issued a general discharge certificate. 7. On 16 March 1987, court-martial charges were preferred against the applicant for drug-related offenses stemming from the October-November positive drug tests. 8. The applicant submitted DA Form 3822-R (Report of Mental Status Evaluation), dated 28 April 1987 (Exhibit G), that shows he was evaluated by a medical professional for consideration of being discharge for misconduct. The evaluation noted the applicant had normal behavior, was fully alert and oriented with clear thinking process. His memory was good and had the mentally responsible, and had the mental capacity to understand and participate in any proceedings. He further meet medical retention requirements as prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 9. The applicant's record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge process. However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which he authenticated at the time of his separation. This document identifies the authority and reason for his discharge. 10. The applicant's DD Form 214 shows he was discharged on 1 May 1987, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. It further shows: * he was discharged in the rank/grade of private/E-1 * his service characterized as under other than honorable conditions * he completed 7 years, 6 months, and 30 days of net active service * he executed an immediate reenlistment this period from 2 October 1979 through 28 March 1984 11. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 18 August 1989. 12. The applicant provided, through counsel, the following additional. a. Exhibit A contains Army Regulation 600-85, effective 3 December 1986 is the regulatory guidance in effect at the time of the applicant's period of service and Exhibit B contains Army Regulation 600-85, in effect 28 December 2012. b. Exhibit C contains awards, certifications of training, and certificates of apprehension during his military service. It also contains a letter of support from the applicant's wife, dated 1 May 2015, asking for him to receive an upgrade of his discharge, and it contains a personal data sheet that shows the applicant receive the following nonjudicial punishment: * on or about 19 November 1984, a company grade, for consuming alcohol in an unauthorized location * on or about 3 September 1986, a field grade, for wrongful use of marijuana c. Exhibit E contained a criminal history record search from the State of New York court system dated 4 August 2015. d. Exhibit F contains: (1) A letter of support from the Cypress Hills, Local Development Corporation, dated 20 May 2015 that shows the applicant is a hard-working, reliable, enthusiastic employee and active member of the community. (2) A memorandum from the applicant to unknown, dated 7 April 1987 reference a chapter 10 discharge; wherein, he indicates his disregard for his career and family, but states he didn't receive any help for a success rehabilitation, which is the fault of the Army. It also contained numerous letters of support from fellow Soldiers. e. Exhibit G contains approximately 100 medical records that show he has medical conditions relating to knee pain, lacerations, broken fibula, and other ailments during his military service. f. Exhibit H contains the applicant's resume after his discharge from military service. g. Exhibit I contains a Veterans Administration document that shows the applicant's military service dates and that are categories by them as honorable from 2 October 1979 to 28 March 1984 and as other than honorable from 29 March 1984 to 1 May 1987. h. Exhibit J contains an 11 March 2016 letter by the applicant to the Board. It states, in effect: (1) He regrets the series of events that led to his discharge, but they do not define him over his entire life. He reiterates the Inspector General's report, which he received after his discharge. (2) His chain of command was going to court-martial him so under duress and coercion his chose to accept a chapter 14 (general discharge). However, six months later it was changed to a chapter 10 discharge (under other than honorable). He believe he was treated unfairly and was denied entry into the substance abuse program. He was not afforded an opportunity to be rehabilitated, which would have enable him to have a military career. (3) With a general discharge he would be able to obtain a federal government job and obtain VA benefits to improve the quality of his life. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 600-85, in effect at the time, prescribes policies and procedures needed to implement, operate, and evaluate the ADAPCP. a. Paragraph 1-9 states alcohol and drug abuse are incompatible with military service. Soldiers identified as alcohol and drug abuses who, in the opinion of their commanders warrant retention, will be afforded the opportunity for rehabilitation. Consideration and processing for separation of Soldiers identified as drug abusers will be in accordance with applicable regulations. b. Paragraph 1-10 states Soldiers identified as illegal drug abusers may be considered for disciplinary actions under the Uniform Code of Military Justice (UCMJ) in addition to separation. Any Soldier who has been identified in two separate instances occurring since 1 July 1983 as users of illegal drugs will be processed for separation from the service. c. Chapter 3 identifies the methods of referral as: voluntary (self); command; biochemical; medical; or investigation/apprehension. (1) Commanders will refer all individuals who are suspected or identifies as drug and/or alcohol abusers, including those identified through urinalysis and blood alcohol tests. All individuals with urine positives will be referred to the ADAPCP for initial screening. (2) If, after the initial ADAPCP screening, a commander believes that a Soldier would not respond favorably to rehabilitation or based on the Soldier's overall record, does not have the potential for future service, the Soldier will be considered for separation. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b states 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. b. Chapter 10 provides, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment includes a punitive discharge, may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred. The applicant must have indicated that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge. He must have acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The applicant, through counsel, requests his UOTHC discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant acknowledges the seriousness of the misconduct that resulted in his discharge; however, he contends he was treated unfairly and if he had been enrolled into the ADAPCP in a timely matter, he could have been rehabilitated and completed a successful career in the military. 3. The applicant's record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge process. However, the applicant provides an Inspector General letter, dated 12 August 1987, which summarizes his misconduct. The Inspector General report shows: a. His contention that he was not entered into the ADAPCP in a timely manner was substantiated, due to the Community Counseling Center being unaware that the 1SG could speak on behalf of the commander, which subsequent to this miscommunication, was corrected. However, it confirms the unit followed the prescribed entry procedures outlined in the applicable regulation for ADAPCP. b. He tested positive on multiple occasions for the use of marijuana and additionally was apprehended by German police and CID for possession and use of marijuana. c. Subsequently, as a result of a third positive urinalysis test, his chain of command considered referral of court-martial charges. 4. The applicant's counsel references the mandatory referral to the Army Substance Abuse Program (ASAP) within five days upon receipt of a positive drug test results. However, this is referenced in Army Regulation 600-85, effective 28 December 2012, some 25 years after the applicant's discharge; therefore, is not applicable to the applicant's service at that time. 5. In accordance with Army Regulation 600-85, dated 3 December 1986, in effect at the time, Soldiers who were identified as alcohol and drug abusers who, in the opinion of their commanders warrant retention, would be afforded the opportunity for rehabilitation. After the initial ADAPCP screening, if the commander believed that the Soldier would not respond favorably to rehabilitation or based on the overall record, the commander believed the Soldier had no potential for future service, the Soldier would be considered for separation. Additionally, any Soldier who had been identified in two separate instances occurring since 1 July 1983 as users of illegal drugs, would be processed for separation from the service. 6. The applicant's record contains a memorandum that shows his battalion commander considered his separation under the provisions of Army Regulation 635-200, chapter 14. However, the authority for separation was later changed to chapter 10. 7. The applicant's record is void of documentation that shows he was treated unfairly or that shows his chain of command was arbitrary or capricious in their actions. It appears that based on his three separate drug related instances and apprehension by civilian and military authorities, his chain of command charged him with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court- martial. 8. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. He provided no evidence that would indicate the contrary. Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment based on his misconduct. 9. The Board operates under the standard of a presumption of regularity in governmental affairs. In the absence of evidence to the contrary the Board must presume that all actions taken by the military were proper. 10. The Board recognizes and applauds the applicant's post-service success and accolades. However, post-service conduct and achievements are not normally a basis for upgrading a discharge. 11. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. A formal hearing may be authorized by the ABCMR or by the ABCMR Director whenever justice requires. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. BOARD DATE: 1 May 2018 DOCKET NUMBER: AR20160007103 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR1999019343 on 18 March 1999. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007103 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007103 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2