IN THE CASE OF: BOARD DATE: 27 August 2020 DOCKET NUMBER: AR20180004124 APPLICANT REQUESTS: The applicant requests reconsideration of his earlier requests to upgrade his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board (ADRB)) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) 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 Numbers AC75-2710 on 23 July 1975 and AR20120007528 on 16 October 2012. 2. The applicant states while he was stationed at Fort Stewart, GA, he was moving his unit's arms room to another location when an M-16 weapons rack fell and crushed his right hand; he had to have surgery. After the surgery, the doctors gave him medications containing the opiate morphine. As he recovered from his injuries, he realized he was becoming addicted to his prescribed medication; the addiction caused life-altering changes and made him an unreliable Soldier. He affirms he loved the Army, and he would like to have his discharge upgraded. With his application, he includes a VA Form 21-4138, on which he states his request for a complete copy of his "C file." 3. On 30 June 2019, the applicant requested the assistance of his U.S. Senator; he gave details about his injury to the Senator, and that, as a result of prescribed medications, he had become addicted to opioids. He additionally provided the following documents: a. A self-authored statement, in which the applicant describes how he hurt his hand and that, as part of his treatment, he was given "lots of morphine and other opioids to include Darvon, Percocet, and maybe others." The applicant writes, following his reassignment to Fort Campbell in May 1974, he continued to be prescribed opioids; he began to do things that were out of character; for example: using other drugs, missing time (i.e., being absent without leave (AWOL)), drinking, and smoking weed (marijuana). He asserts the opioids caused him to become out of control, and he was mentally affected with "shame, [poor] decision-making, loneliness, depression, and thoughts of suicide." The applicant concludes by saying, "I think that I was overly medicated with these opioids and could not find my way back without help and there was none at the time." b. A VA letter, addressed to the applicant and dated 2 January 2019, which shows VA advised him Congress had recently passed a law that allows the VA to provide mental and behavioral health care to certain former service members who had received under other than honorable conditions discharges; the law covered those service members who had been on active duty for more than 100 days and had served in a combat role, or those service members who had experienced sexual harassment or sexual assault during their term of active duty. c. Letters from the applicant's spouse and his sister (who is also a minister). (1) The applicant's spouse stated, in effect, she and the applicant had dated in high school, and they married after graduation; everything was fine at first, but when she moved in with the applicant, he would stay up all night, pacing, and he would have bad mood swings. She tried hard to stay, but eventually had to move back in with her parents. At a later point, she went back in an effort to work things out, but the applicant was unable to hold a job, and then he attempted suicide; she urged the applicant to go to counseling, but after he refused, she left and did not go back. She expressed sadness that things had turned out the way they did; they had children together and it hurt her not being able to raise them with their father. (2) The applicant's sister wrote that the person who left their mother's house to join the Army and the person who returned were totally different. It appeared to her that something had taken over the applicant's body because his behavior had changed so much; while he had treated their mother with the greatest respect before he entered the Army, on the applicant's return, "his conversation in front of his mother was ridicule." 4. On 13 November 2019, the Army Review Boards Agency requested the applicant provide medical documents supporting his claim of mental health addiction issues. In December 2019, the applicant submitted a letter from the former executive director of a county alcohol and drug abuse program; the former director affirmed he first met the applicant in 1991 and that the applicant had had a serious addiction problem, which stemmed from heavy alcohol and drug use while on active duty. Following several weeks of evaluation, the applicant entered a residential treatment program; the applicant was focused on maintaining sobriety, and the clinical staff was very impressed with the applicant's desire to stay clean. The former director resigned from the position in 2001, after which he lost touch with the applicant; the former director has since assumed a State-level role as a Drug Court Director. 5. The applicant's service records show: a. On 27 September 1972, the applicant enlisted in the Regular Army for 3 years; he was 18 years old. Upon completion of initial training, orders assigned the applicant to Fort Stewart, and he arrived on 8 January 1973. At some point prior to 22 January 1973, the applicant's chain of command promoted him to private (PV2)/E-2. b. On 22 January 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 12 until 15 January 1973 (3 days). The applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant was subsequently reported as AWOL from 22 to 23 January 1973 (1 day). c. On 8 February 1973, the applicant again accepted NJP for being AWOL from 2 until 6 February 1973 (4 days). Orders reassigned the applicant to Fort Campbell, KY, and he arrived on 1 June 1973. d. The applicant's DA Form 20 shows the applicant was absent from his Fort Campbell unit from 6 September to 1 October 1973 (25 days); the applicant's service record does not include a copy of any disciplinary action for this absence. e. On 16 November 1973, the applicant's Fort Campbell unit reported him as AWOL and dropped him from unit rolls on 15 December 1973. On 7 January 1974, the applicant surrendered himself to military authority at Fort Bragg, NC, and he was transferred to the U.S. Army Personnel Control Facility (PCF) at Fort Bragg. f. On 11 January 1974, the applicant's PCF commander preferred court-martial charges against him for being AWOL from 16 November 1973 until 7 January 1974 (52 days). On 12 January 1974, after consulting with counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request. He elected to submit a statement in his own behalf, in which he wrote the following: (1) The reason the applicant requested discharge was because he wanted to get out of the Army. He felt he was not compatible with the Army; the Army was breaking down his nerves and his moral character. (2) Before he entered the Army, he had never smoked, nor had he ever used drugs. His main reason for going AWOL was that when he was in the civilian community, he felt calmer, and he did not smoke or use drugs; he believed joining the Army was a mistake, and it was a mistake he would have to live with for the rest of his life. g. The applicant's PCF chain of command recommended approval of the applicant's separation request; the company commander stated the applicant had told him in an interview that his reason for going AWOL was he was "fed-up and wanted out of the Army." The applicant told the commander if he was not discharged, he would go AWOL again. The Headquarters Command commander stated the applicant had enlisted for the 82nd Airborne Division, but, on arrival at Airborne School, the applicant refused to jump; the applicant was then sent to Fort Campbell, but he did not like his duties and he felt his leadership was giving him conflicting orders. Based on this, the applicant went AWOL so the Army would discharge him. h. On 28 January 1974, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; in addition, he ordered the applicant's rank reduction to private/E-1. On 26 February 1974, the applicant was discharged accordingly; his DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 2 months and 5 days of his 3-year enlistment contract, with 85 days of lost time. He was awarded or authorized the National Defense Service Medal and two marksmanship qualification badges. i. On 27 February 1974, the applicant petitioned the ADRB requesting an upgrade to general under honorable conditions. (1) The applicant stated he was a supply clerk and, while he was stationed at Fort Campbell, he had very little work to do; the applicant wanted to attend school, so he tried to talk about this with his commander, but his commander was always too busy. As a result, he went to the battalion, but a major in the battalion told him to go back and talk to his commander. The applicant felt depressed and completely left out; he started using drugs and went AWOL. The applicant pointed out that he had turned himself in at Fort Bragg. (2) On 5 August 1974, the ADRB conducted a hearing, in which the applicant and his counsel presented evidence for the ADRB's consideration. (a) The applicant explained his previous periods of AWOL; regarding his 25 day AWOL in September 1973, the applicant claimed his reasons were that he had felt depressed after his company commander failed to approve his request for school and was frustrated with his leadership because they were giving him conflicting guidance on how to operate the arms room. (b) The applicant told the ADRB he had started using drugs like acid (lysergic acid diethylamide (LSD)) and speed (street name for various stimulant drugs, to include methamphetamine) in August 1973; he was never addicted, but, if he had become addicted, he would have sought medical help. At the time of his separation, however, the applicant affirmed he was not on drugs, and he had not used drugs since his discharge. (3) On 5 August 1974, the ADRB denied the applicant's appeal. j. On 12 March 1975, the applicant applied to the ABCMR for an upgrade to honorable. He essentially offered the same arguments previously submitted to the ADRB. On 23 July 1975, the ABCMR denied the applicant's request, stating the evidence presented was insufficient to indicate the presence of a probable error or injustice. k. On 6 May 1977, the applicant reapplied to the ADRB for an upgraded character of service; on his application, he reiterated his earlier claims. (1) On 28 October 1977, the applicant personally appeared before the ADRB with counsel, and stated he had suffered a hand injury while moving a weapons rack at Fort Stewart. His hand injury required surgery and, as of the hearing date, he still could not fully use of his hand; this loss of functionality had negatively affected his employability, and he was seeking the upgrade in order to obtain medical care. The applicant further noted that, while he received treatment for his hand at Fort Stewart, the treatment did not continue after his reassignment to Fort Bragg; he became depressed and went AWOL. The applicant claimed he had asked for help, but, in each instance, his requests were denied. (2) The ADRB denied the applicant's request, finding the applicant's discharge was proper and equitable. In addition, the ADRB did not find either the applicant's or counsel's arguments sufficiently mitigating to warrant an upgrade. (3) The applicant's case was subsequently reviewed, in compliance with an order from a United States District Court; as a result, new index numbers were assigned, but no change was made to the ADRB's previous decision l. The applicant applied to the ADRB on two additional occasions: 19 January 1982 and 1 April 2012; both applications were administratively closed. While the April 2012 application gave details about the applicant's hand injury, and that a military doctor had prescribed Vicodin, neither application mentioned opioid addiction. m. On 29 March 2012, the applicant applied to the ABCMR, seeking a discharge upgrade. (1) The applicant stated he had been injured while on active duty; as he and members of his unit were moving the arms room, the M-16 weapons rack fell and caught his hand. The resulting injury required surgery due to nerve damage; after the surgery, the applicant returned to work, but he was limited in what he could do because of his injury and the medication he had been prescribed (Vicodin). He was only AWOL for a short period of time. (2) On 16 October 2012, the Board reviewed the applicant's statements and his service record and denied the applicant's request. The Board noted, while the available medical records showed a surgical intervention due to a problem with the applicant's hand, the purpose of this surgery was to repair a congenital issue, not nerve damage resulting from an injury. Further, the Board did not find evidence the applicant's hand surgery was a factor in the misconduct that led to his discharge. 6. Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. The Manual for Courts- Martial then in effect stated a punitive discharge was one of the authorized punishments for violations of Article 86 (Absence Without Leave for more than 30 Days). 7. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 8. Based on the applicant's claims of opioid addiction, the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section." MEDICAL REVIEW: 1. The ARBA Medical Advisor reviewed the supporting documents and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: 2. At Fort Campbell, the applicant was dissatisfied with his duties and desired to go to school. But he says Command would not hear his request. He also reported frustration because of conflicting orders giving by different superiors. The applicant has appealed multiple times over the years to have a discharge upgrade during which he described an on duty right hand injury. He stated the injury required surgery after which he became addicted to the pain medication (Vicodin) and began use of other drugs. He says he continued with drug use until he became out of control and began doing things that were out of character for him. He reported that due to these circumstances he became depressed. 3. The 14 January 1974 Report of Mental Status Evaluation did not detect any significant mental illness. There were also no in-service treatment records available for this review; however, the 16 October 2012 ABCMR proceedings recorded the following observation: “While the applicant received surgical intervention for a problem with his hand, the available medical records indicate the surgery was for a congenital abnormality, not due to an injury. Further, there is no indication that his problem with his hand was a factor in the misconduct that resulted in his discharge”. 4. A JLV search showed the applicant is not service connected for any conditions. The available record does not show that the applicant has been diagnosed with post- traumatic stress disorder or a traumatic brain injury. There is insufficient evidence to support the presence of a boardable behavioral health diagnosis during the applicant’s military service to consider with respect to mitigation of misconduct. That being said, the Board may choose to give some consideration to the applicant’s undated handwritten contemporaneous personal statement on why he wanted to leave the Army in which he stated that prior to entry into service he never smoked or used drugs and while back home, he did not have access to the drugs and therefore he went AWOL in part and in effect to avoid drug use and further degradation of his character. Back then, he identified this as the main reason for his AWOL offences and later he connected the start of drug use with postsurgical use of pain medication for the hand surgery (due to congenital defect or not) he received while in service. Though the right hand condition was not a direct cause of the AWOL offenses, it may have been an indirect contributing cause. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim regarding drug addiction and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors with regard to his misconduct. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Numbers AC75-2710, dated 23 July 1975, and AR20120007528, dated 16 October 2012. 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. A Soldier's service could be characterized as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency. In addition, the Soldier could not have one general court-martial or more than one special court-martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 2. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a punitive discharge was an available maximum punishment for violations of Article 86 (AWOL for more than 30 days). 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-26b (3) (Reduction Authority and Reasons – Reasons for Reduction – Approved for Discharge from Service with an Undesirable Discharge) that Soldiers approved for administrative separation with an undesirable discharge under other than honorable conditions were to be reduced to private/E-1 prior to 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (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. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004124 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180004124 9 ABCMR Record of Proceedings (cont) AR20180004124 8