ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 December 2019 DOCKET NUMBER: AR20160018583 APPLICANT REQUESTS: * In effect, reconsideration of his previous request for foreign service credit (FSC) and medals and ribbons be added * As a new issue an upgrade of his general under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 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 AR20110015744 on 21 February 2012. 2. The applicant states he served in Iraq from March 2003 to April 2004. It has been longer than 6 months since his discharge and he would like an upgrade as he is 100% service connected, permanent and total. Not all of his medals and ribbons are on his DD Form 214. He did not care until now and he is trying to straighten his life up and be a better person in society. Everything was lost in a fire. His mother had a copy of his discharge. Upon deploying, his command pulled him out of substance rehabilitation to meet deployment numbers. Fort Leonard Wood, MO, 5th Engineer Battalion upon returning from Iraq he was never allowed to see mental health or substance abuse help for his alcohol problem. They just put him out of the military, gave him his discharge and escorted his to the base gate then said wish you well. At the time, he did not know he was suffering from chronic Post Traumatic Stress Disorder (PTSD)/substance abuse (alcohol) issues that he was suffering from and still suffer from until 2006. He is currently in Milwaukee Veteran’s hospital seeking help. 3. With respect to his request for FSC and related medals and awards, the applicant was issued a DD Form 215 (Correction to DD Form 214) on 4 April 2012 that corrected his FSC and added his awards. He was provided a copy of this DD Form 215 by separate correspondence. The issue of FSC and awards will not be discussed further in this Record of Proceedings. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 9 May 2002. b. On 17 January 2003, he was stopped at the main gate of Fort Leonard Wood, due to a strong odor of alcohol emitting from the applicant’s breath and/or person. He was eventually advised of the MO implied consent law in which he consented to a chemical test of his breath, resulting in a .165 BAC (blood alcohol count). c. He served in Kuwait/Iraq from 5 April 2003 to 3 March 2004. d. On 27 April 2004, he accepted non-judicial punishment (NJP) for on or about 12 April 2004, violate a lawful general regulation by wrongfully having a BAC of 1.4%. He was reduced to private/E-1. e. On 16 June 2004, he accepted NJP for unlawfully striking another Soldier several times to the head, neck, back and sides; also found drink while on duty with a BAC of 0.08%. f. On 25 June 2004, he underwent a medical examination for possible separation under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separation- Enlisted Personnel) Chapter 9 (Alcohol Rehabilitation Failure). Alcohol dependency was annotated in summary of defects and diagnoses. He was enrolled in Army Substance Abuse Program and attended three visits before deployment and three visits post deployment. g. On 8 July 2004, a counselor at the Army Substance Abuse Program stated the applicant was involved in a number of alcohol related incidents and was scheduled for inpatient treatment in mid-June 2004. His inpatient treatment was withdrawn effective 25 May 2004 due to being involved in yet another serious alcohol related incident. His continued use of alcohol warrants consideration for an administrative separation from active duty as a rehabilitation failure in accordance with (IAW) AR 600-85 (The Army Substance Abuse Program). h. On 9 July 2004, the immediate commander notified the applicant of potential separation recommendation UP of AR 635-200, Chapter 9. The applicant acknowledged receipt of the notice of proposed separation. i. On 15 July 2004, the applicant was advised of his rights for the basis for the contemplated action to separate him UP of AR 635-200 Chapter 9; the effects of such separation; the rights available to him and the effect of any action taken by him in waiving his rights. He understood: * He is not entitled to have his case heard by an administrative separation board because he was not being considered for an other than honorable characterization of service and he had less than six (6) years' total active service * basis for the separation and its effects * he may expect to encounter substantial prejudice in civilian life because of a general under honorable conditions discharge * he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge j. He submitted a request to receive an honorable discharge, wherein he stated in effect he served his unit and country in combat. He asked not to be judged on his disease, which he cannot control and wished to be separated before he got into more trouble and seek help on the outside where he will have unlimited time to spare for proper treatment. k. On 19 July 2004, the immediate commander recommended approval of the separation with a characterization of service as under honorable conditions (general). The approval authority approved the recommendation and waived further efforts to rehabilitate the Soldier. l. The applicant was discharged accordingly on 21 July 2004. His DD Form 214 show she was discharged with a character of service as under honorable conditions (general) UP of AR 635-200 Chapter 9 for alcohol rehabilitation failure. m. ADD Form 215 was issued on 4 April 2012 adding in: * Block 12f (Foreign Service) 10 months and 27 days * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) Iraq Campaign Medal with two bronze service stars, Army Commendation Medal (1st Oak Leaf Cluster), and Overseas Service Ribbon * Block 18 (Remarks) Service in Kuwait/Iraq from 20030405-20040303 5. He applied to the Army Discharge Review Board (ADRB) and after careful review of his application, military records and all other available evidence, the ADRB determined that he was properly and equitably discharged and was denied on 12 January 2012. 6. On 19 November 2019, an advisory opinion was obtained from the ARBA Psychologist. The advisor opined: a. In accordance with the September 2014 Secretary of Defense Liberal Guidance Memorandum, there IS documentation to support the existence of a behavioral health condition at the time of discharge. b. The available records indicate that the applicant did meet medical retention standards with respect to behavioral health diagnoses IAW AR 40-501 (Medical Services- Standards of Medical Fitness). c. While PTSD IS considered a mitigating factor for the misconduct that occurred after his deployment it is not a mitigating factor for the driving under the influence and other alcohol related misconduct that preceded his deployment. 7. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response and/or a rebuttal. He did not respond. 8. By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. 9. 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 found relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of separation was appropriate. Additionally, the Board found that the applicant’s request for foreign service credit, along with the medals earned as part of that foreign service, had already been corrected by a previously published DD Form 215, dated 4 April 2012. Therefore, the Board found that no further relief was warranted. 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 3/11/2020 CHAIRPERSON Signed by: 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. Army Regulation (AR) 40-501 (Medical Services- Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, and retention and related policies and procedures. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation. 3. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 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. c. 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 Army Drug and Alcohol Prevention and Control Program (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 general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. However, an honorable discharge is required if restricted-use information was used. 4. 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. NOTHING FOLLOWS