IN THE CASE OF: BOARD DATE: 27 August 2020 DOCKET NUMBER: AR20180005032 APPLICANT REQUESTS: in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) 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 believes undiagnosed mental conditions, coupled with the demise of his marriage, caused him to act outside of his normal character. From 1979 to 1982, he served in Fort Lewis, Washington. In addition to his responsibilities in his MOS (military occupational specialty) of 45K (Tank Turret Repairman), he conducted small arms repair, acted as security and company commander driver. At the time, he also volunteered to maintain barracks living quarters and utilities. During this tour of duty, he received the Good Conduct Medal, M16 Rifle Marksman Badge, Mechanics Badge, and Army Service Ribbon. As a 20-year old male from Peabody, MA, he joined the service along with a close friend. He remembers being especially proud of this decision and was soon promoted to private first class (PFC) due to recruiting a fellow service member. b. Although he will always be proud of his military service, he would like to share a brief narrative surrounding the discharge of his second enlistment. In 1983, he reenlisted and was immediately sent to Hanau, West Germany. By this time, he had a wife and infant daughter. He and his wife were assured that housing for their family would be provided once they were stationed there. He was informed this was no longer a possibility. Despite the family pressure, he remained in Germany for almost a year. Throughout the year, he received detailed letters from his wife regarding her intentions to dissolve their marriage and family unit. c. Due to this situation and increasing depressive symptoms, he informed his superiors of his desire to be discharged. For the ?better of the service? he was given the choice between being court-martialed or an other than honorable discharge. Upon reflection, he believes his mental health prevented him from fully grasping the severity of the situation and future implications of being forced to make this decision. Presently, he is homeless and unemployed for the first time in his life. Although he had always prided himself on being financially independent for the first time in his life, he is seeking assistance afforded to Veterans for their military service and dedication. Even though he hopes to receive assistance from this process, it is equally as important for him to share his experience and perspective of his past and present life circumstances. 3. On 6 February 1979, the applicant enlisted in the Regular Army for a term of 3 years. 4. After initial entry training, on 8 August 1979, he was assigned to Fort Lewis, WA. On 11 August 1981, he reenlisted for a term of 6 years, at the age of 21 years old. 5. On 21 December 1982, the applicant was assigned overseas to Germany. On 29 March 1983, the applicant accepted nonjudicial punishment (NJP) for willfully destroying by kicking in the room door, of a value of about $121.00, military property on 12 March 1983. His punishment wasreduction to PFC, suspended until 29 June 1983; forfeiture of $100.00; and 14 days extra duty. 6. A DA Form 4465 (ADAPCP (Alcohol and Drug Abuse Prevention and Control Program) Client Intake Record) shows on 28 March 1983 the applicant was enrolled in ADAPCP and the basis for his enrollment was cannabis use and alcohol abuse. He had one previous Article 15, UCMJ (Uniform Code of Military Justice), which was alcohol related. He was placed in Track II but it was determined that inpatient detoxification was unnecessary. He used alcohol and cannabis within the last 48 hours, using cannabis daily and alcohol two to three times a week. He used alcohol and cannabis prior to his enlistment. 7. On 10 June 1983, the applicant went absent without leave (AWOL) and on 14 June 1983, SSG D_, a member of his unit, apprehended him and returned him to the unit with a guard. 8. DA Form 4466 (ADAPCP Client Progress Report (CPR)) shows on 14 June 1983, the ADAPCP Counselor’s assessment of the applicant’s progress during rehabilitation was that he was not progressing. The commander’s appraisal of the applicant’s progress and military effectiveness in efficiency and conduct was unsatisfactory. 9. On 16 June 1983, the applicant was confined by military authorities at the Mannheim, U.S. Army Confinement Facility, pending court-martial. 10. On 16 June 1983, court-martial charges were preferred against the applicant for: * Charge I, Article 86, UCMJ, Specification: AWOL from 10 June 1983 and remaining absent until 14 June 1983 * Charge II, Article 95, UCMJ, Specifications: resisting lawful apprehension by SSG D_ on 14 June 1983 and Specification 2: escaping from the lawful custody of Specialist Four (SP4) B_ on 14 June 1983 * Charge III, Article 134, Specification: wrongfully communicating to Staff Sergeant D_ a threat to injury by saying to him, ?I am kicking the s_ out of you? on 14 June 1983 11. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights, and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. The applicant elected not to submit a statement on his own behalf and not to request a separation physical. a. The record is void of the immediate and battalion commanders? endorsements to the request for Chapter 10. The brigade commander recommended approval of his request and on 21 July 1983, the appropriate separation authority approved the applicant's request directing that he be reduced to Private E-1 and issued an Under Other Than Honorable Conditions Certificate. b. On 25 July 1983, the applicant was released from confinement and returned to duty. 12. On 12 August 1983, he was discharged accordingly. His service was characterized as UOTHC. He completed 4 years, 6 months, and 3 days of his net active service this period and 1 year, 11 months, and 28 days of his 6-year contractual obligation. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * He was awarded or authorized: * Good Conduct Medal * M-16 Rifle Marksman Marksmanship Qualification Badge * Mechanics Badge * Army Service Ribbon * Dates of Time Lost during this Period: 19830610-19830613) (4 days AWOL) 13. The record is void of a separation medical examination and mental status evaluation. 14. Army regulations governing ADAPCP provide 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. Commanders were to initiate separation for those members who failed to rehabilitate. Separation of soldiers under the provisions of Army Regulation 635-200, Chapter 9 were normally characterized as honorable or under honorable conditions (general). 15. AR 635-200, Chapter 10, provides for a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the UCMJ and Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A medical examination under the provisions of chapter 10 was not required, but could be requested by the member in writing. If requested, a mental status evaluation was also required. If requested, a copy of the medical examination and mental status evaluation was to be included in the separation packet proceedings. 16. According to the MCM, 1969 (Revised Edition), Article 95, UCMJ, resisting lawful apprehension and escaping from the lawful custody and Article 134, wrongfully communicating a threat authorized a punitive discharge. Article 86, UCMJ – absence without leave for 30 days or less did not. 17. 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. 17. Based on the applicant's reference to a medical condition(s) being the basis of his separation, 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 applicant’s military service records. His military medical records were not available for review. 2. A review of VA’s Joint Legacy Viewer (JLV) indicates he was first seen on 2 August 2006 through the homeless veteran office. He reported he had been living in a shelter for several years. He reported being on methadone but wanted to get off. He was psychiatrically admitted due to suicidal ideation on 12 April 2017. The psychiatrist diagnosed him with Opioid Use Disorder, in sustained remission on daily methadone maintenance; Unspecified Anxiety Disorder; and Post-Traumatic Stress Disorder (PTSD) due to childhood trauma. 3. He was required to go to the clinic for his dosage and this resulted in losing his job. In addition, his girlfriend made him move out, leading to him becoming suicidal. His inpatient records document flashbacks from childhood trauma and other PTSD symptoms. He had no service connected disability at the time of his admission and was discharged on 22 May 2017. He was admitted to a civilian facility from 23-30 November 2017 to reduce his methadone dosage and returned to the VA for outpatient treatment on 7 December 2017. On 16 August 2018, he completed a Compensation & Pension Examination that determined his preexisting PTSD was exacerbated by his military service. He was given a 60% service connected disability rating for PTSD. 4. There is documentation to support a behavioral health condition at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. PTSD is a mitigating factor for the misconduct that led to his discharge. BOARD DISCUSSION: 1. 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. 2. The Board considered the applicant's claim regarding undiagnosed mental conditions and the review and conclusions of the ARBA Medical Advisor. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant had a behavioral health condition that was a mitigating factor in the misconduct that led to his discharge. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to under honorable conditions (general). 3. The Board concurred with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 his DD Form 214 for the period ending 12 August 1983 to show his service was characterized as under honorable conditions (general), to show he held the rank/grade of specialist/E-4 with a date of rank of 1 June 1981, and to show the corrections described in Administrative Note(s) below. 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 12 August 1983, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" * "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790206 UNTIL 810810" 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 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: o Track I. Awareness education and group counseling, as required (non- residential). Enrollment will not exceed 30 days. o 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 o 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member?s current enlistment of current period of service with due consideration for the member?s, age, length of service, grade, and general aptitude. b. A general discharge was 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. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. e. A medical examination under the provisions of chapter 10 was not required, but may be requested by the member in writing. If requested, a mental status evaluation was also required. If requested; a copy of the medical examination and mental status evaluation was to be included in the separation packet proceedings. 4. Army Regulation 40-501 (Standards of Medical Fitness) states, in pertinent part, if a member pending separation may request a medical examination in writing. If a medical examination is requested by the member, then a mental status evaluation is required. 5. Per Manual for Courts-Martial, 1969 (Revised Edition), Article 95, UCMJ, resisting lawful apprehension and escaping from the lawful custody and Article 134, wrongfully communicating a threat authorized a punitive discharge. Article 86, UCMJ – absence without leave for 30 days or less does not. 6. 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are 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 misconduct that led to the discharge. 7. 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) AR20180005032 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005032 7 ABCMR Record of Proceedings (cont) AR20180005032 6