IN THE CASE OF: BOARD DATE: 6 February 2020 DOCKET NUMBER: AR20170000976 APPLICANT REQUESTS: in effect, his bad conduct discharge upgraded to honorable or general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement * three unsworn and unsigned character reference letters FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the 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 his discharge should be upgraded so he can meet the requirements for Department of Veterans Affairs benefits. In a personal statement which he signed he stated he was alcohol dependent while in the service. From his viewpoint drinking alcohol was accepted in military service, but his failure to demonstrate control of his drinking led to his alcohol substance abuse. He states he did not receive assistance for his substance abuse while on active duty. It was because of his alcoholism that he was not allowed to remain in the service. With support, he now knows he needs medical treatment. Through the years, he was not able to express himself mentally or emotionally and he now comes forward asking for help. 3. After enlisting in the U.S. Army Reserve delayed entry program on 20 April 1979, he was discharged to enter the Regular Army on 6 July 1979 for a 3-year period of service. He was trained in and qualified in military occupational specialty (MOS) 31R (Multi- Channel Transmission Operator-Maintainer). 4. His military personnel record contains documentation showing he reenlisted in the Regular Army as follows: * on 16 June 1982, for 3 years * on 30 November 1984, for 4 years * on 5 July 1988, for 2 years * on 27 November 1989, for 4 years * on 24 June 1993, for 4 years 5. On 1 April 1990 he was promoted to the rank and grade of sergeant first class/pay grade E-7. 6. On 25 May 1993 the applicant, in the rank of sergeant (SFC)/pay grade E-7, accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for attempting to have sexual intercourse with a lower enlisted Soldier from his platoon, who was not his wife, and for fraternization. The applicant’s imposed punishment was forfeiture of $960.00 per month for 2 months. He appealed his brigade commander’s imposition to the commanding general who denied his appeal on 28 July 1993. 7. On 21 March 1994, General Court-Martial Order (GCMO) Number 2 was issued by the Commander, Southern European Task Force. During a general court-martial the applicant was found guilty of the following offenses for: * violating Article 134, UCMJ, by committing an indecent assault on 24 July 1993 * violating Article 134, UCMJ, for wrongfully communicating indecent language on 24 July 1993 * violating Article 134, UCMJ, for wrongfully endeavoring to impede an investigation by the Criminal Investigation Division 8. His sentence was adjudged on 15 December 1993 which reduced him to the grade of E-1, to forfeit all pay and allowance, to confinement for 6 months, and to be discharged with a bad conduct discharge. Accordingly, his sentence was approved by the general court-martial convening authority. 9. On 22 May 1997, Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky issued GCMO Number 105. At the time he was assigned to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox. This order states that GCMO Number 2 and its sentence was affirmed; therefore, the bad conduct discharge would be executed because the sentence to confinement had been served. 10. Accordingly, Orders 195-0180 dated 14 July 1994 were issued discharging the applicant from the Regular Army effective 16 July 1997 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 11. Subsequently, on 16 July 1997 a DD Form 214 was prepared documenting his service. He served for 17 years, 7 months and 13 days. During this period he was confined from 16 December 1993 through 12 May 1994 and he was in an excess leave status (without pay) for the period from 20 December 1994 to 16 July 1997, a total of 940 days. His DD Form 214 contains the following pertinent facts: * Item 4a (Grade, Rate or Rank) – Private (PVT) * Item 4b (Pay Grade) – E-1 * Item 12h (Effective Date of Pay Grade) – 21 March 1994 * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – shows in pertinent part the Army Commendation Medal (3rd Award), the Army Achievement Medal (5th Award), and the Army Good Conduct Medal (4h Award), * Item 24 (Character of Service) – bad conduct * Item 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, section IV * Item 26 (Separation Code) – JJD * Item 28 (Narrative Reason for Separation) – Court-Martial, Other 12. The applicant provided three unsworn and unsigned statements from three individuals identified as retired Staff Sergeant M, retired Sergeant Major P and retired Lieutenant Colonel M. a. Staff Sergeant (Retired) M states he has known the applicant for 20 years having served together in the U.S. Army. They are members of the same church where the applicant is known as an evangelist, a teacher of God’s word and a friend. He is a strong family man, a husband and a provider. In their town he is generous man to his community sharing with others that are less fortunate. He states the applicant is a man of great character with a strong work ethic as demonstrated by his management of his private business, an eatery establishment. b. Sergeant Major (Retired) P states he has known the applicant for several years. They met while both were serving on active duty. He knows the applicant was a Soldier of the highest moral character who was active in the growth and development of the Soldiers under his charge. He found the applicant had strong leadership skills, was confident, and was an excellent judge of character. They are currently members of the same church where he has witnessed the growth and testimony of the applicant. The applicant serves in duties that he was selected for based on his demonstrated integrity and caring for all people. He acknowledges the applicant is a successful small business owner. He concludes by saying from his assessment the applicant is an honest man. c. Lieutenant Colonel (Retired) M states he too has known the applicant for 16 years. He finds the applicant to be a fair-minded, honest, trustworthy, hardworking, diligent, industrious, and responsible individual. The applicant is a small business owner who genuinely cares about his community and constantly helps others by providing jobs for those in need of work. At their church the applicant is very active in church social programs. He concludes by stating he would not hesitate to "share a foxhole" with the applicant at any time. 13. 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; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 14. 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 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. 15. On 12 February 2019 the staff of the Army Review Boards Agency sent the applicant a letter requesting he provide medical documents to support his mental and emotional health and physical disabilities. He failed to respond to the Agency request for medical evidence. 16. On 18 December 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The applicant’s service treatment record was not available for review from the National Archives and Records Administration. 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. There are no available evidence or mitigating facts supporting a change to his narrative reason for separation, his separation code or his characterization of service. The advisor concludes by stating alcohol dependence is no a mitigating factor for the applicant’s misconduct that led to his bad conduct discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant was provided a copy of the advisory opinion on 5 January 2020 and given an opportunity to submit comments. Through his local Veterans Service Officer he requested an extension to the initial suspense. An extension was granted on 22 January 2020 extending his request for evidence and a rebuttal to the advisory opinion to 30 January 2020, his requested date. 18. On 1 February 2020 the applicant responded. He stated after reviewing the medical advisory, no one has asked him questions concerning his mental abilities during the period in question. During his military service he used alcohol heavily and he achieved many great honors while under the influence of alcohol. He states, "I was a functioning alcoholic to the point of even becoming a lifetime member of the Sergeant Morales club." He is sober now and from his research he now knows during the period in question he was in an alcohol black out. He would use all his resources to buy alcohol. He provides new evidence to show what he was going through at the time. He asks the Board for their deepest understanding of an issue that goes far beyond himself. a. He provides a statement dated 22 January 2020 that is not authenticated nor notarized from CB, a medical assistant. He states he has known the applicant since 1998 and knows his struggle with alcohol addiction. He knows when the applicant was at his lowest and wanted to give up on life. The applicant had an encounter with God that changed his life for the better. Through his faith he was led away from alcoholism and he has been sober for 10 years. The applicant is a respected member of his community. b. He provides a statement from his former wife who states they were married for 10 years. She states before they were married the applicant was the life of the party. What she did not know was how much alcohol he consumed. She knows he drank in the mornings after physical fitness training, when he came home at lunch and then in the evenings with his friends. He continuously was drinking alcohol and having friends over to their home because he liked to entertain. She states he was not physically abusive but once he started to drink he would verbally abuse her. She never recalls a day he did not drink. She thinks he drank because of his difficult jobs. She tried to get him to slow down his drinking, but he didn’t think he had a problem with alcohol. They divorced because she was tired of his drinking and didn’t want to raise the children in that environment. c. He provides three pictures showing people dressed in civilian clothes drinking, raising their drinks to toast and laughing together. No one is identified in the photographs. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, court-martial proceedings and the reason for his separation. The Board considered the review and conclusions of the medical advising official and the applicant’s response. The Board found insufficient evidence of in-service mitigation to overcome the serious misconduct. The Board considered the applicant provided evidence of post-service conduct and letters of reference but determined them insufficient to support a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed. a. Paragraph 1-14 states when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 4. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation designator codes to be used for the stated reasons. * SPD KFF is the code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPD JJD is the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 3, Court-Martial 5. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions stated to use the DA Form 2-1 and orders to verify the entries on the DD Form 214. 6. Army Regulation 40-501 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board (MEB) if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties a. Paragraph 3-32 (Mood disorders) the causes for referral to an MEB include persistent or recurrence of symptoms sufficient to require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. b. Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) the causes for referral to an MEB include persistent or recurrence of symptoms require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. c. The various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the Active Army, Army Reserve National Guard, and U.S. Army Reserve. The medical conditions and physical defects, individually or in combination, are those, that: (1) Significantly limit or interfere with the Soldier's performance of their duties. (2) May compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring. (3) May compromise the health or well-being of other Soldiers. (4) May prejudice the best interests of the Government if the individual were to remain in the military Service. e. Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the physical disability evaluation system according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18. It states the mere presence of an impairment does not, itself, justify a finding of unfitness because of physical disability. In each case it is necessary to compare the nature and degree of physical disability present the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank or rating. To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501. These guidelines are used to refer Soldier to an MEB. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000976 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1