IN THE CASE OF: BOARD DATE: 3 June 2020 DOCKET NUMBER: AR20170012231 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions Discharge to general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Myrover- Reese Fellowship Homes (MRFH) statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, 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, all in one year he lost his mother, grandmother, sister and his child all in the same year. He started drinking and received two driving under the influence (DUI). His unit sent him to Camp Lejeune detainment center for 30 days. After returning to his unit, he came up hot on the urinalysis test and his unit chaptered him out of the military. He states he did not received any kind of treatment for drug and alcohol abuse before being chaptered out the Army. 3. The applicant provided a statement from Myrover Reese fellowship homes dated 17 May 2017 which states in effect, this letter is to verify that is currently residing at Myrover-Reese Fellowship Homes. Myrover Reese Fellowship Homes is a three to six month treatment program for men and women who suffer from alcohol and drug abuse issues. currently has no source of income and is completely reliant on MRFH. 4. A review of the applicant record shows: a. He enlisted in the Regular Army on 4 January 2001. b. Medical record extracts from 29 September 2001 to 28 November 2001. c. On 19 September 2001, he appealed nonjudicial punishment for driving under the influence. His punishment consisted of reduction to private/E-1. d. On 4 December 2001, he accepted nonjudicial punishment for drunk on duty as a guard. e. On 23 January 2002, the applicant's immediate commander notified the applicant that he is initiating action to recommend him for elimination from military service under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel - Personnel Separations), chapter 14-12c (commissioned of a serious offense) based upon testing positive for the wrongful use of cocaine, driving while intoxicated, wrongful intoxication and more charges of misconduct. The applicant acknowledged on the same date. f. On 30 January 2002, the applicant's immediate commander recommended the applicant separation under the provisions of AR 635-200, chapter 14-12c, by reason of serious misconduct. g. On 30 January 2002, the applicant consulted with counsel. He was advised of the possible effects of a less than fully honorable discharge and the procedures and rights that were available to him. He further acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, (VA) and he could be deprived of his rights and benefits as a veteran under both Federal and State laws h. On 8 February 2002, consistent with the chain of command's recommendation, the separation authority approved the applicant’s discharge with an under other than honorable conditions discharge and the unit commander will ensure that the finance and accounting officer is notified that recoupment of any unearned portion of Private M enlistment bonus (EB) or selective reenlistment bonus (SRB) is accomplished IAW AR 635-200, Chapter 1, Paragraph 1-20, if any. i. On 21 February 2002, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 14-12c (misconduct) with an under other than honorable conditions characterization of service. He completed 1 year, 1 months, and 18 days of active service. 5. The applicant's record is void of evidence that shows he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 6. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. While liberal consideration guidance was applied, documentation is void of a psychiatric condition. Accordingly, there is no medical mitigation. However, the Board may want to consider an upgrade to General in recognition of the time since discharge and potential need for VA substance and/or psychiatric care. b. Due to the period of service, active duty electronic medical records are void of related appointments, medications, labs, or consults. c. VA records of void of contact or a service connection. d. The applicant did not provide medical records or documentation of a psychiatric condition of consideration.7. By regulation, commanders are authorized to initiate separation action against Soldiers for various types of misconduct including those who commit a serious offense. e. The issuance of a discharge under other than honorable conditions was normally considered appropriate. 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 DOD 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 relief was warranted. One potential outcome discussed was to deny the requested relief based upon the short term of honorable service completed prior to a pattern of misconduct which led to the applicant’s separation. However, based upon the available documentation and the recommendation from the medical advisor, the Board determined to grant clemency in recognition of the time since discharge and potential need for VA substance and/or psychiatric care. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XXX : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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, United States Code, 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 (AR) 635-200 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 12c of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 3. 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; 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 on 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. 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. 5. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. 6. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Paragraph 3-1 states that the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. The Soldier will not be declared physically unfit for military service because of- disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. b. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. e. Appendix B, paragraph f of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170012231 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1