IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20180008447 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 17 May 1989, to show an unspecified, presumably more favorable, narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 14 May 2018 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 14 May 2018 * DD Form 214, for the period ending 17 May 1989 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (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: a. He received an in the line of duty (ILOD) injury and because he wished to continue to serve, he started self-medicating with alcohol. The self-medicating resulted in his alcohol addiction. He later found out that his father had the same disease. b. While on active duty, his post-traumatic stress disorder (PTSD) and pain were not properly addressed. He feels that all was not done for him while on active duty. If he had received proper care, he would have been able to finish his military career and not had the "sentence" of an alcohol rehabilitation failure on his record. c, Through Department of Veterans Affairs (VA) hospital and spiritual therapy, he has now received the proper care and is alcohol free, although he still has to deal with his PTSD and pain. 3. The applicant enlisted in the Regular Army on 29 July 1975. He reenlisted in the Regular Army on two occasions, 30 November 1979 and 30 March 1987, with an extension of his service for the convenience of the Government. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 14 August 1987, for being absent without leave (AWOL), from on or about 7 August 1987 until on or about 10 August 1987 * on 8 December 1988, for being AWOL, from on or about 19 October 1988 until on or about 21 October 1988 5. Before a special court-martial on or about 11 August 1988, at Fort Lewis, Washington, the applicant was found guilty of being AWOL, from on or about 25 May 1988 until on or about 23 June 1988. 6. The applicant's immediate commander submitted a memorandum on 7 February 1989, indicating that: a. The applicant had been referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 28 June 1988. b. In consultation with the ADAPCP rehabilitation team, on 19 July 1988, it was determined that his condition was severe enough to place him in the Track II program. c. His treatment included counseling therapy weekly, attendance twice weekly at Alcoholics Anonymous, a 10 day centralized phase local rehabilitation, and voluntary 30 day Antabuse treatment. d. The applicant was considered an alcohol rehabilitation failure due to noncompliance with the treatment plan, in that he reported for work on 20 January 1989 with a strong smell of alcohol on his breath. He admitted to having gone out drinking the night before. e. The applicant was determined to not be alcohol dependent (addicted) and was thus not eligible for transfer to the VA as a part of his separation. 7. The applicant's immediate commander notified the applicant on 14 February 1989 of his intent to initiate separation proceedings against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9, by reason of the applicant's rehabilitation failure. 8. The applicant consulted with legal counsel on 14 February 1989. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant waived his right to have his case heard by an administrative separation board conditionally on receipt of an honorable discharge. c. He was advised he could submit any statements he desired in his own behalf. His request for discharge indicates he submitted a statement; however, it is not available for review. 9. The applicant's immediate commander formally recommended the applicant's separation from service on 16 February 1989. He recommended that the applicant receive a general discharge. 10. With the denial of the conditional waiver, proceedings were commenced to afford the applicant an appearance before an administrative separation board, until on 17 April 1989, when the applicant withdrew his conditional waiver and substituted the provision that he receive not less than a general discharge. 11. The available records does not include the remainder of the separation processing documentation. 12. The applicant was discharged on 17 May 1989. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 9, as an alcohol rehabilitation failure, and his service characterization was under honorable conditions. His DD Form 214 further shows: * he was discharged in the rank/grade of private first class/E-3 * he had 13 years, nine months, and 19 days of active service with two periods of lost time * he was awarded the Army Good Conduct Medal (4th Award), Army Commendation Medal, and Army Achievement Medal (3rd Award) 13. The Army Discharge Review Board denied the applicant's request for a discharge upgrade on 14 October 1997. It was noted that the applicant had two years and 19 days of creditable service during his last enlistment period. 14. At the time of the applicant's discharge, he was not considered to meet the criteria of alcohol addiction. Further, the applicant has not provided and the available record does not contain any documentation of the diagnoses of alcohol addiction or PTSD and does not document any in service injury or his care through the VA. 15. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: The applicant is applying to the ABCMR requesting an upgrade of his 17 May 1989 discharge characterized as under honorable conditions (general). He claims that he began to self-medicate with alcohol following an injury he incurred in the line of duty. He states “As I began to medicate myself due to my injury, I did not realize the disease of alcohol addiction. Every opportunity was not offered to me to fight the disease.” He also claims that his PTSD was not properly addressed. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 29 July 1975 and was discharged under honorable conditions (general) on 17 May 1989 under the separation authority provided by chapter 9 of AR 635-200, Personnel Separations – Enlisted Personnel (5 July 1984), “Alcohol or Other Drug Abuse Rehabilitation Failure.” Because of the period of service under consideration, there are no records in AHLTA or iPERMS. No medical documentation was submitted with the case. The referenced “injury” was not identified by the applicant and was not able to be identified by this reviewer. His first visit at a Veterans Health Administration facility was in 1997. JLV also shows he has continued to undergo extensive treatment for substance abuse, and that he was diagnosed with PTSD in 2007. There was no noted history of deployments or other possible PTSD inducing events during his service, and the etiology of this diagnosis is unknown. He received his first article 15 for being absent without leave (AWOL) on 14 August 1987 after having been AWOL from 7-10 August 1987. At his 23 September 1988 trial by court martial, the applicant was found guilty of having been AWOL from 25 May 1988 – 23 June 1988. He received a second article 15 on 5 December 1988 after having been AWOL from 19-21 October 1988. A summary of his alcohol abuse rehabilitation efforts was provided to his commander in February 1989 (page17). It shows the applicant was enrolled in the I Corps and Fort Lewis command Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) in June 1988. It was noted that he had “failed to comply with treatment plans and goals,” and it was concluded: “a. The soldier has not made satisfactory progress toward achieving criteria for successful rehabilitation as outlined in AR 600-85, 21 October 1988, Alcohol and Drug Abuse Prevention and Control Program, para 4-8. b. Further rehabilitation efforts in a military environment are not justified in light of the soldier’s lack of progress; and c. Discharge from the military should be effected.” A board of officers was appointed IAW chapter 9 of 635-200 in March 1989. On 17 April 1989, the applicant voluntarily waived his right to the board and was subsequently discharged. It is the opinion of the Agency Medical Advisor that neither an upgrade of his discharge nor a referral of his case to the DES is warranted. 16. The Board should consider the applicant's award of eight personal decorations, his ADAPCP treatment, and his prior three honorable discharges for consideration granting relief in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory Opinion, the Board found insufficient evidence to grant relief. The Board carefully considered the applicant’ contentions regarding his request to have his under honorable conditions (general) discharge be upgraded to an honorable discharge, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 17 May 1989, to show an unspecified, presumably more favorable, narrative reason for separation. 1. The Board agreed with the Medical Advisory Opinion that the available record does not reasonably support PTSD as a boardable condition at the time of the applicant’s military service. Therefore, there is no basis for the Board to upgrade the applicant’s request for characterization upgrade or more favorable narrative reason due to DoD’s Liberal Consideration guidance as there is no medical or behavioral health condition that may have mitigated the misconduct. a. The record shows that it took time for a VA diagnosis of PTSD to emerge, culminating in a VA PTSD determination in June 2007, 18 years after the applicant’s discharge. b. The Board agreed that the preponderance of evidence shows that medical and service records do not support PTSD as an unfitting condition at time of discharge. There is insufficient medical evidence of record and the applicant failed to provide any evidence sufficient to show that he was suffering from or was being treated for PTSD during his service or at the time of discharge. 2. Furthermore, regarding the applicant’s contentions that he did not receive the proper treatment for his alcohol and drug addiction and should, therefore, have his discharge upgraded accordingly, a preponderance of evidence indicates that the applicant was discharged appropriately for failing the I Corps and Fort Lewis command Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) in June 1988. The Board agreed with the ARBA Medical Advisor that neither an upgrade of his discharge nor a referral of his case to the DES is warranted. 3. The Board agreed that the VA properly provided the applicant post-service support and benefits for service connected medical concerns. This decision does not negate the applicant’s post-service diagnosis of PTSD. However, the Board found insufficient evidence to recommend a change in the applicant’ discharge characterization or narrative reason. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 17 May 1989, 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): * IMMEDIATE REENLISTMENTS THIS PERIOD FROM 750729 UNTIL 780503; 780504 UNTIL 791129; 791130 UNTIL 870330 * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 750729 UNTIL 870330 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 9 provides the authority and outlines the procedures for discharging soldiers for alcohol or other drug abuse rehabilitation failure. A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. The service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions. Separation procedures include: (1) Soldier is entitled to request a hearing before an administrative separation board if he/she have six or more years of total active and reserve military service. (2) Discharge is based upon alcohol or other drug abuse such as illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug when: (a) The soldier is enrolled in Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). (b) The commander determines that further rehabilitation efforts are not practical, rendering the soldier a rehabilitation failure. This determination will be made in consultation with the rehabilitation team. (c) 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. 4. The American Medical Association (AMA), American College of Physicians, the U.S. National Institutes for Health, and the World Health Organization all classify alcoholism as a disease. The diagnostic name currently utilized is Alcohol Use Disorder (AUD) and is considered when problem drinking becomes severe. AUD is a chronic relapsing brain disorder characterized by an impaired ability to stop or control alcohol use despite adverse social, occupational, or health consequences. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating 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 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20180008447 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008447 8 ABCMR Record of Proceedings (cont) AR20180008447 7