ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20160014436 APPLICANT REQUESTS: to upgrade his character of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * Supplemental DD Form 293 * Standard Form (SF) 89 (Report of Medical History) * SF 601 (Immunization Record) * SF 88 (Report of Medical Examination) * University Medical Center Discharge Form 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 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 informed that his discharge would become an honorable discharge, six months after his release. In a second application submitted 7 December 2016, the applicant states that his drug addiction to Heroin is a service related addiction. 3. The applicant provides: a. Report of Medical History, dated 2 March 1971, which states he suffered from rectal disease, foot and back trouble, nightmares, depression and a drug habit. b. Immunization Record, which states the immunizations received during the applicants time on active duty. c. Report of Medical Examination, dated 16 February 1970. d. University Medical Center Discharge Form, dated 21 April 2016, which states diagnoses of an altered mental status, hypertension, type 2 diabetes, opioid use, cocaine use, unspecified viral hepatitis C without hepatic coma, and long term use of insulin. 4. A review of the applicant’s service record shows: a. He was inducted on 27 May 1970, into Army of the United States. b. Court marital charges were preferred on 19 February 1971. His DD Form 458 (Charge Sheet) indicates he was charged with two specifications of being absent without leave (AWOL) for a period of 83 days, from 15 October 1970 through 17 January 1971. c. He consulted with legal counsel on 19 February 1971 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * if approved, he may be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge d. Consistent with the chain of command recommendation, on 10 March 1971 the separation authority approved the applicant’s request for discharge, for the good of the service with an under other than honorable discharge. e. On 27 March 1974, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an under conditions other than honorable character of service. He completed 7 months and 21 days of active service. He had 83 days lost time, from 15 October 1970 through 17 January 1971. 5. In the processing of this case, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 7 February 2017. The psychologist opined: a. The applicant endorsed having a drug or narcotic habit during his inductee physical, and states being told when he was originally inducted that he would receive methadone for heroin addiction. b. The applicant underwent a chapter Mental Status Evaluation (MSE) on 17 February 1971, which cleared him for separation noting he was mentally responsible to know right from wrong and had no medically boardable diagnosis. The provider diagnosed a passive-aggressive personality disorder, chronic, severe; manifested by a generally sociopathic type behavior problem, several AWOL's, a user and abuser of drugs for at least five years, little or no respect for authority figures, poor insight and judgment. The provider noted the personality disorder and related drug and conduct issues existed prior to service (EPTS). c. To support his self-report of drug addiction, the applicant submitted a note from a civilian Emergency Room visit in April 2016 which listed Opioid and Cocaine Use disorders as diagnoses. There were no further medical records provided. d. The applicant had a drug abuse problem which existed prior to service and was not service aggravated. He did receive the required behavioral health exam prior to administrative separation which diagnosed a personality disorder which is not a medically boardable condition and would not mitigate the basis of separation. 6. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a rebuttal, but he did not respond. 7. By regulation, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge will normally be furnished an individual is discharged for the good of the service. 8. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to a lengthy AWOL offense, which resulted in the discharge, the Board concluded the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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 Army Board for Correction of Military Records (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 (AR) 40-501 (Medical Services – Standards of Medical Fitness), provides medical fitness standards of sufficient detail to insure uniformity in the medical evaluation of service members and potential service members. a. Chapter 3 (Medical Fitness Standards for Retention, Promotion and Separation including Retirement), sets forth the various medical conditions and physical defects which normally render a member unfit for further military service. b. Section16 (Psychoses, Psychoneuroses, and Personality Disorders), states causes for rejection for appointment, enlistment, and induction are: * Frequent encounters with law enforcement agencies, or antisocial behavior * Overt homosexuality or other forms of sexual deviant practices * Chronic alcoholism or alcohol addiction * Drug addiction 3. Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a stated 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. Paragraph 3-7b stated that 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. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 based on 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20160014436 4 1