IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20180008900 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20120002486 on 7 August 2012. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 30 April 2018, with self-authored statement FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120002486 on 7 August 2012. 2. The applicant states the things that happened while he was in the Army were not intentional. He was a child who made poor choices. He was acting out of fear. He was away from all of the people who loved him. When he used drugs, it numbed him. After being an alcoholic and drug addict for years, he is clean and sober now. He works for a treatment center. He did serve and he feels he deserves a better discharge. He still has a life to live. 3. In an additional self-authored statement, the applicant states the following: a. Prior to going into the military, he had never been away from home or away from his mother. He did well when he first came into the military because he was raised to be respectful. He is still respectful today. b. Following his initial entry training, he received orders to go to Vietnam. He began drinking alcohol and using drugs out of fear. He needed courage. He drank alcohol heavily and tried heroin. He was hooked immediately. After a while, he was really strung out on the drug. He tested positive for heroin and was sent to Long Binh jail treatment facility for seven days. He was in Vietnam for about three months. c. He tested positive for heroin again. He was sent to the 3rd Field Hospital, where he spent 21 days. He was declared an addict and was ineligible to finish his tour. He was shipped back to the United States and admitted to the psychiatric ward at Blanchard Hospital at Fort Campbell, Kentucky, before being placed in a unit. At this time, he was using alcohol again and his mind was messed up. d. He had never used drugs and alcohol prior to joining the Army. Out of loneliness, missing his mother, and fear, he was forced to find something to give him courage. He regrets that part of his life. He wanted to stay in the Army until retirement. e. He continued to have trouble with drugs and alcohol after getting out of the military. He no longer uses drugs or alcohol. He is married; he and his wife are both working and raising one of their grandchildren. He works for a drug and alcohol treatment center as a substance abuse technician. He also hosts an Alcoholics Anonymous (AA) meeting at his church every Saturday, sings in church choir, serves on the Usher Board, and teaches adult Sunday school classes. 4. The applicant enlisted in the Regular Army on 30 September 1971. Upon the completion of his initial entry training, he was assigned to Company A, Troop Command, U.S. Army Depot, Long Binh, Republic of Vietnam. 5. The applicant received non-judicial punishment (NJP), under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), on the following occasions: * on 27 January 1972, for failure to go at the time prescribed to his appointed place of duty, on or about 26 January 1972 * on 4 May 1972, for failure to go at the time prescribed to his appointed place of duty, on or about 21 April 1972, and sleeping upon his post at Long Binh Depot, on or about 22 April 1972 * on 19 September 1972, for failure to go at the time prescribed to his appointed place of duty for three consecutive days, and failure to obey a lawful order from his commanding officer, on or about 18 September 1972 6. The applicant's service record contains a DA Form 3349 (Medical Record – Physical Profile Record), dated 27 November 1972, from the Department of Psychiatry, U.S. Army Hospital, Fort Campbell, Kentucky. He was issued a temporary physical profile for participation in the Drug Abuse Program with further physical profile evaluation scheduled for 27 January 1973. 7. The applicant received NJP, under the provisions of Article 15 of the UCMJ, on multiple occasions: * on 16 January 1973, for failure to go to his appointed place of duty at the time prescribed, on or about 10 and 11 January 1973, and disobeying a lawful order from his superior noncommissioned officer, on or about 11 January 1973 * on 31 January 1973, for breaking restriction, on or about 19 January 1973, and absenting himself from his place of duty, without authority, on or about 29 January 1973 * on 14 February 1973, for failure to report to his assigned place of duty, without authority, on or about 13 February 1973 * on 15 March 1973, for absenting himself from his assigned duty station, without authority, on or about 4 March 1973 through on or about 7 March 1973 8. The applicant’s record is void of the complete facts and circumstances that led to his discharge. However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 19 July 1973, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a (1) 13-7e, by reason of frequent incidents of a discreditable nature with civil or military authorities. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 9. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 7 August 2012, determined he was properly discharged, and denied his request for relief. 10. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not in use at the time of his service. His hardcopy military medical records were not available for review. A review of his separation packet indicates he was placed on temporary profile due to enrollment in the drug abuse treatment program. A review of VA’s Joint Legacy Viewer (JLV) indicates the applicant has not been diagnosed or treated in the VA system. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no 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. There is no documented behavioral health conditions to consider with respect to mitigation of the misconduct that led to his discharge. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including post-traumatic stress disorder (PTSD). The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 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 and amend the ABCMR decision set forth Docket Number AR20120002486 on 7 August 2012. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The Board agreed with the Medical Advisory Opinion that the available record does not reasonably 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. There is no documented behavioral health conditions to consider with respect to mitigation of the misconduct that led to his discharge. The Board found limited evidence of post-service honorable conduct or other possible grounds for clemency that might have mitigated the discharge characterization. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate. 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): Not Applicable REFERENCES: 1. Title 10, U.S. Code (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 635-200, in effect at the time, set 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 predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. 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. c. Chapter 13 established policy and prescribed procedures for separating Soldiers for unfitness or unsuitability. Paragraph 13-5a (Unfitness) provided, in pertinent part, that an individual would be subject to separation by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or an established pattern showing dishonorable failure to pay just debts. This chapter further provided that: (1) An individual separated by reason of unfitness would be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual was awarded a personal decoration or if warranted by the particular circumstances in his case. (2) When an individual was to be discharged as unfit and issued an undesirable discharge, the convening authority would direct his immediate reduction to the lowest enlisted grade. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20180008900 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008900 6 ABCMR Record of Proceedings (cont) AR20180008900 5