BOARD DATE: 2 March 2020 DOCKET NUMBER: AR20170001399 APPLICANT REQUESTS: a change of his narrative reason. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2173 (Statement of Medical Examination and Duty Status, dated 18 December 1982 * DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status) dated 6 January 1983 * DA Form 2 (Personnel Qualification Record – Part I), dated 24 July 1982 * DA Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 2 February 1983 * VA Form 60-3101 (Veterans Administration Request for Information), dated 29 September 1983 * Standard Form (SF) 180 (Request Pertaining to Military Records) dated 6 February 2006 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: a. He was on a remote tour, 60 miles from the DMZ (Demilitarized Zone), at Camp Howze, Korea. He was scheduled to complete a one-year tour. He had depression during enlistment with no record of treatment. His DD Form 214 indicates his narrative reason as Alcohol Abuse-Rehabilitation Failure. SGT L. required him to perform guard duty for the motor pool knowing that he had been drinking while off duty. The applicant shot himself while on guard duty due to untreated depression. He was air evacuated to Seoul Korea, with a gunshot wound to the right side of his chest, which exited the body on the lower right quadrant. It was a known suicide attempt but he did not receive any counseling services. There was no diagnosis of alcohol abuse based on an assessment by a qualified mental health specialist. b. The record reflects only the .085% BAC, 3 hours after the suicide attempt; it should have reflected the 2.55% BAC. He was discharged immediately after his suicide attempt (approximately 30 days) and a line of duty investigation in which a psychiatric evaluation was performed contradicts him being of sound mind. At the time of the event he was intoxicated at the level of 2.55% (percent) blood alcohol content (BAC) and therefore was not of sound mind. c. He never received alcohol abuse rehabilitation or counseling for a confirmed suicide attempt with knowledge of depression, documented on DD Form 261, dated 6 January 1983, and his record is not available for review. He received discharge papers and no-post treatment for depression. It took him more than three years to apply because after his discharge, he read his DD Form 214 and he was told that it could never be changed. He did not consider it as an option as he was never offered any alcohol abuse rehabilitation when he was depressed and the depression was untreated. 3. On 12 January 1982, at the age of 24 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. After completing his one station training (OSUT), he was assigned to an overseas assignment in Korea in the military occupational specialty (MOS) 11B (Infantryman). 5. His record is void of a separation packet. His record shows: a. A Statement of Medical Examination and Duty Status shows on 4 December 1982, the applicant was admitted to the hospital in Seoul Korea because of a gunshot wound to the chest. He was influenced by alcohol; however, at the time no blood alcohol test was performed. The attending physician concluded that the injury was incurred in line of duty. The commander states the applicant assumed his duty as motor pool guard at about 2400 hours. While on guard duty, he was armed with an M16 Rifle. A gunshot was heard and he was found with a gunshot wound in his chest. The commander believed the wound was self-inflicted but the assumption had not been substantiated. b. A Report of Investigation, Line of Duty (LOD) and Misconduct Status, shows: (1) On or about 2350 hours, 3 December 1982, the applicant attempted to commit suicide at the motor pool while on guard duty. The investigation explored three distinct but related areas in regards to the incident, alcohol abuse, intentional suicide, and mental/emotional disorders. The case revealed that he had a BAC of .085%, three hours after the incident; therefore, he was intoxicated. He had a history of alcohol abuse and since he chose to consume alcohol prior to the time of the incident, the investigation found such intoxication was intentional. (2) The psychiatric evaluation suggested he was of sound mind at the time of the incident. He was described as being depressed but his depression did not constitute unsoundness. Through examination of possibilities of mental/emotional disorder, the investigation observed that he had a history of misconduct, which reflected a possible personality disorder. (3) The investigating officer found the injury was not in line of duty due to the applicant’s own misconduct. The findings were approved by the appointing authority and the Assistant Adjutant General, 2nd Infantry Division, by authority of The Secretary of the Army. c. On 2 February 1983, he was discharged. His service was characterized as under honorable conditions. He completed 1 year and 21 days of net active service this period. His DD Form 214 shows: * He was awarded or authorized: * Army Service Ribbon * Hand Grenade Expert Marksmanship Qualification Badge * Rifle Marksman Marksmanship Qualification Badge * Separation Authority: Army Regulation (AR) 635-200, Chapter 9 * Separation Code: JPD (JKL) * Reenlistment code: RE-3 * Narrative Reason for Separation: Alcohol Abuse–Rehabilitation Failure 6. The applicant provides: a. Veterans Administration Request for Information, dated 29 September 1983 shows the Veterans Administration requested his line of duty determination from the Army regarding the applicant shooting himself while intoxicated. The service department indicated there were no records of his LOD. b. Request Pertaining to Military Records dated 6 February 2006, shows the applicant requested his complete 201 File so that he could apply for State and Federal benefits. 7. On 24 January 2020, the Army Review Boards Agency Psychologist rendered a medical opinion regarding his case. It states: a. The psychologist reviewed the applicant’s ABCMR applications, his hardcopy military records, and the electronic VA medical record (Joint Legacy Reviewer (JLV)). The electronic military medical record was not in use at the time of his service. His hardcopy medical record was not available for review. b. The applicant entered the military after receiving waivers for seven criminal convictions, which included assault, public intoxication, unlawful entry, open container, disorderly conduct, and contributing to the delinquency of a minor. c. His alcohol related incident on duty met the requirements of Chapter 9 separation. All available documentation indicates the reason and characterization of his discharge were correct. There is no medical diagnosis, to include depression, that would mitigate the misconduct that led to his discharge. 8. The applicant states he never received alcohol abuse rehabilitation and his record is not available for review. He never received counseling for a confirmed suicide attempt with knowledge of depression. He was immediately discharged after the suicide attempt, approximately 30 days later, with no post treatment for depression. He received discharge papers and no-post treatment for depression. His record shows: a. He enlisted at the age of 24 years old, he was hospitalized for a gunshot wound to the chest due to an apparent suicide attempt, and he was intoxicated at the time of the incident. He was discharged 61 days after his suicide attempt. He completed 1 year and 21 days of his 3-year contractual obligation. b. His record provides administrative irregularity in the proper retention of required records to be maintained in his military personnel records. His separation shows he was separated for alcohol abuse-rehabilitation failure, however, his record is void of any counseling's or any documentation to show that he was admitted into the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). c. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. d. AR 600-85 (Personnel General –– Alcohol and Drug Abuse Prevention and Control Program) provides the objective of rehabilitation for military personnel was to restore identified individuals to effective duty and identify individuals who cannot be rehabilitated for separation. Commanders were to initiate separation for those members who failed to rehabilitate. e. AR 635-200 (Personnel Separations- Enlisted Personnel), Chapter 9, Alcohol or Other Drug Abuse Rehabilitation Failure, provided the authority and outlined the procedures for discharging enlisted personnel based on alcohol or other drug(s) abuse failure. It provided a member who is enrolled in the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program when there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. An honorable or under honorable conditions discharge were appropriate for chapter 9. f. AR 635-5-1 (Separation Program Designator (SPD) Codes), indicated SPD codes "JPD (JKL)" were assigned to enlisted Soldiers who were involuntarily discharged under the Authority of AR 635-200, chapter 9, and the Narrative Reason: ?Alcohol Abuse –– Rehabilitation Failure.? 9. The applicant requests an upgrade so that he may receive benefits. The ABCMR does not consider requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his hospitalization, alcohol-related behaviors, the line of duty investigation and determination, a related psychiatric evaluation, the absence of evidence of counselling for or enrollment in ADAPCP, the absence of a separation packet and the reason for his separation. The Board considered the review and conclusions of the medical advising official. The Board found insufficient evidence of in-service mitigation or error related to his separation processing. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s separation was not in error or unjust. The Board concurs with the correction stated in the Administrative Note(s) below. 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 :X X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, except for the correction stated in the Administrative Note(s) that follow, 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 2 February 1983, is missing important entries that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): Korea Defense Service Medal. 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) 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) governs the Army's ADAPCP, defining policy and responsibilities, it provides: a. When individuals are identified, voluntarily or involuntarily as possible alcohol or other drug abusers, the unit commander or designated representative will advise them of their rights, explain provisions of the limited use policy, interview and inform them of the evidence, give them an opportunity to provide additional evidence, including information on drug sources, if they desire. Such disclosure is strictly voluntary, collect any drugs or paraphernalia voluntarily relinquished and turn them over to the provost marshal and refer all suspected individuals identified, to include through urinalysis and blood alcohol test to the alcohol drug abuse prevention control program (ADAPCP). b. The initial screening interview will be accomplished by the ADAPCP staff. Limited use provisions are unchanged by the mandatory separation processing of drug abusers according to Army Regulations 635-100 and 635-200. If after the initial screening the commander believes a soldier would not respond to rehabilitation or based on the soldiers record does not have the potential for future service considered and processed for separation (other than chapter 9) according to Army Regulations 635-100 or 635- 200. c. The ADAPCP counselor will inform the soldier of the limited use policy and determine if a medical evaluation is required. A medical evaluation is required of illegal drug abusers for positive tests other than cannabinoids (THC). The soldier or commander may request a medical evaluation by a physician at time to determine the extent of alcohol or drug abuse by a soldier. Medical evaluations determine whether serious medical illness is indicated due to alcohol or drug abuse. d. As soon as possible after the ADAPCP initial screening is completed, the team, at a minimum, composed of the soldier, his commander/designee and the ADAPCP counselor will convene. The ADAPCP counselor will recommend the appropriate disposition of the referral. One of the following or a combination of the following will be recommended: * Unit counseling by commander/designated representative * Other action (for example, no referral to other agency) * No ADAPCP services required at the present time * Enrollment in one of the following: * Track I. Awareness education and group counseling, as required (non- residential). Enrollment will not exceed 30 days. * Track II. Rehabilitation (non-residential). Intensive individual or group counseling (may include awareness education). Enrollment in this track is for a minimum of 30 days * Track III, Rehabilitation. Residential medical treatment with non- residential follow up. Enrollment in this track is limited to those clients who have been evaluated by a physician as requiring residential treatment. Residential care will be reserved for those individuals with longstanding problems of abuse, but whose prognosis for recovery is favorable with proper treatment. Enrollment is for 360 days starting on the date of the commander's formal enrollment into Track III. e. The objective of rehabilitation for military personnel was to restore identified individuals to effective duty and identify individuals who cannot be rehabilitated within the scope of this regulation. 3. AR 635-200 (Personnel Separations- Enlisted Personnel), in effect at the time, provided the authority for separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. An 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. Chapter 9, Alcohol or Other Drug Abuse Rehabilitation Failure, provided the authority and outlined the procedures for discharging enlisted personnel based on alcohol or other drug(s) abuse failure. It stated a Soldier who is enrolled in the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program. A Soldier may be separated, in accordance with the above, when there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. An honorable or under honorable conditions discharge were appropriate for chapter 9. c. Chapter 5 (Separation for the Convenience of the Government), paragraph 5-3 (Secretarial Authority), states the separation of enlisted personnel under this paragraph is the prerogative of the Secretary of the Army. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Such authority may be given either in an individual case or by an order applicable to all cases specified in such order. A member being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an entry level separation. 4. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. SPD codes "JPD (JKL)" were assigned to enlisted Soldiers who were involuntarily discharged under the Authority of AR 635-200, chapter 9, and the Narrative Reason: ?Alcohol Abuse –– Rehabilitation Failure.? 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 6. 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. a. 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. b. 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// ABCMR Record of Proceedings (cont) AR20170001399 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170001399 7 ABCMR Record of Proceedings (cont) AR20170001399 6