ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20160013988 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions discharge to honorable * change narrative reason for separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * third-party statement of support * DD Form 214 (Certificate of Release or Discharge from Active Duty) * eight pages of Department of Veterans Affairs Progress Notes * seven pages of medical records from a Department of the Navy Addiction Treatment Facility * approximately 220 pages of military personnel records FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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. He is humbly requesting that extenuating circumstances be given consideration in upgrading his under other than honorable conditions, in lieu of trial by court-martial discharge, because of his medical conditions. He was diagnosed with depression, adjustment disorder w/depressive features, cocaine-induced depression, overwhelming stress, sleep disorder, and cocaine abuse. b. He did not receive proper treatment for his mental health illnesses and his drug abuse was misdiagnosed. He was diagnosed by the Department of Veterans Affairs Medical Center with adjustment disorder with mixed emotional features (depression and anxiety), cocaine and alcohol dependence (addiction), depression, anxiety, and a Global Assessment of Functioning (GAF) score of 50 then 48. c. The alcohol and drug abuse were symptoms of his mental health illnesses. The mitigating factors behind his misconduct were his non-psychotic mental health illnesses, sleep disorder, stress, and his disease of addiction. He was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), self-referral. He did not receive the 3-4 weeks track II treatment from the place he was directed to go to and he was sent to Jacksonville, FL Naval Air Station rehabilitation center in which the Navy did not treat drug abuse or addiction. They were about to send him back until they called his unit and they said "the CG [Commanding General], USAREC [U.S. Army Recruiting Command] wants me to receive some kind of treatment but he plans to put me out of the Army." e. He received two weeks of treatment and sent back to his unit. Rehabilitation for alcohol or drug abuse is for those Soldiers who have potential for further service in the Army. He was setup for failure since his command was planning to put him out of the Army once he return to the unit from rehabilitation, which is the most critical period of the rehabilitation. He was ridiculed, embarrassed, and reminded of his drug abuse, and isolated with little command support. Additional stress was added with the violations of confidentiality of his medical information without his consent by his physician and command; and there was a violation of the “Limited Use Policy” in which an administrative involuntary separation proceeding (elimination process) was being conducted and no new evidence was used to initiate this process. The only evidence used were the ones protected under the "Limited Use Policy." Another stressor was that he was attached to his wife's Reserve unit since August 2000 and did not receive attachment orders until December 2000, and the orders were for more than 180 days, invalid, and his medical information was sent to them also. 3. Following enlisted service in the Regular Army, U.S. Army Reserve (USAR), and Army National Guard, the applicant was appointed a Reserve commissioned officer on 20 July 1990. He entered active duty on 29 October 1990 and he was promoted to captain effective 1 December 1994. 4. The applicant received a general officer memorandum of reprimand (GOMOR) on 10 October 2000, while serving as the commander of a U.S. Army recruiting company, for unlawful use of cocaine and for being absent without authority from his change of command ceremony. 5. Two DD Forms 616 (Report of Return of Absentee) show the applicant was absent without leave (AWOL) from 2 March to 10 April 2001 and from 11 July to 31 July 2001. 6. Court-martial charges were preferred against the applicant for his AWOL offense (2 March-10 April 2001) and for being absent without authority from his change of command ceremony, said failure constituting conduct unbecoming an officer and a gentleman. 7. On 23 May 2001, the applicant voluntarily tendered his resignation from the Army for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 600-8-24 (Officer Transfer and Discharges), chapter 3, paragraph 3-13. He stated: * he did not desire to appear before a court-martial or board of officers * he had not been subject to coercion with respect to the resignation * he was advised of and fully understood the implications of his action * he was fully advised and counseled by a member of the Trial Defense Service and Judge Advocate General’s Corps * he was afforded an opportunity to present matters in explanation, mitigation, or defense of his * he apologized for his actions and conduct * he requested that his discharge be characterized as honorable * he understood that his resignation could be considered as being under other than honorable conditions 8. On 11 June 2001, the Commanding General, U.S. Army Armor Center, Fort Knox, KY, recommended approval of the applicant’s resignation from the Army in lieu of court- martial with a characterization of service of under other than honorable conditions. 9. The Department of the Army Ad Hoc Review Board recommended that the applicant’s resignation for the good of the service be accepted. On 9 July 2001, the Deputy Assistant Secretary (Army Review Boards) accepted the recommendation, approved the applicant’s request, and directed he be discharged with an under other than honorable conditions discharge. 10. The applicant's DD Form 214 shows he was discharged on 31 July 2001 under the provisions of Army Regulation 600-8-24, paragraph 3-13, in lieu of trial by court-martial. He completed 10 years, 8 months, and 12 days of active duty as a commissioned officer. 11. The Army Discharge Review Board denied the applicant’s request for an upgrade his discharge on 5 December 2008. 12. The applicant provided a third-party statement of support attesting to the applicant's positive post-service conduct and accomplishments. 13. On 7 November 2018, the Army Review Boards Agency psychiatrist/medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. The advisory also found that while the applicant received in-service and post-service behavioral health diagnoses, none of the diagnosed conditions are mitigating for the misconduct leading to his separation. The applicant's military records do not support the existence of post-traumatic stress disorder or any other boardable condition at the time of discharge. The advisory concluded that the applicant's behavioral health conditions are not mitigating for the misconduct that resulted in his under other than honorable conditions discharge from the military. There is no available evidence supporting a change to his narrative reason for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. The applicant was provided a copy of the advisory opinion on 9 November 2018 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, letter of support, and the medical advisory were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found the applicant received a 10 Oct 00 administrative reprimand based, in part, on his admission of drug use to a medical professional on initial entry into ASAP. While the Limited Use Policy prohibits government use of the above admission in actions under the UCMJ and on the characterization of service, it does not prevent the use of such in the issuance of an administrative reprimand. The separation action initiated 5 December 00 under AR 600-8-24, para. 4-2(b) for misconduct was also based on the applicant’s admission of recent drug use to a medical professional on entry into ASAP (as a self-referral). However, there is no limited use policy violation because service characterization was limited to HD. The limited use policy does not protect against evidence that is initially introduced to the separation proceeding by the applicant. The Board agreed that the applicant's discharge characterization and reason for discharge was warranted as a result of the misconduct. 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. 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 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 600-8-24, paragraph 3-13, provides that an officer may submit a resignation for the good of the service (RFGOS) in lieu of court-martial when court- martial charges have been preferred against the officer with a view toward trial by general court-martial or when the officer is under a suspended sentence of dismissal. The commander will ensure that RFGOSs are voluntary, that officers are provided the opportunity to consult with legally qualified counsel who is a member of the Judge Advocate General’s Corps or a civilian counsel retained by the officer at his or her own expense, and allowed a reasonable period of time to consider requesting a RFGOS. An officer separated under this paragraph normally receives a characterization of service of under other than honorable conditions. 3. Army Regulation 600-8-24, paragraph 1-21, states that the character of service will be predicated on the officer’s behavior and performance while a member of the Army. Characterization will normally be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident could provide the basis of characterization of service. An honorable characterization of service will normally be given when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer. A general under honorable conditions characterization of service will normally be given when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable characterization of discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. 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. 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. 5. Army Regulation 600-85, paragraph 10-12 provides that the limited use policy is prohibited by the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to “Honorable” if protected evidence is used. However, the limited use policy does not preclude the introduction of evidence for impeachment or rebuttal purposes in any proceeding in which the evidence of drug abuse (or lack thereof) has first been introduced by the Soldier.” ----NOTHING FOLLOWS----