IN THE CASE OF: BOARD DATE: 15 December 2020 DOCKET NUMBER: AR20180011541 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge and a change in the narrative reason for his separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Three Certificates * Eight Letters of Support 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 requests an upgrade of his under other than honorable conditions discharge. a. He believes the discharge was excessive and did not reflect the kind of Soldier he was or the person he was at the time. It certainly does not reflect in any way the person he is now. He received a good conduct medal then, made some mistakes, and paid for them for the last 24 years. He was just a kid that made a mistake. He worked hard to become someone different than the person the discharge reflects. b. He is 45 years old, divorced, and a father of three children. He currently works as a Certified Surgical Technologist and has also been a licensed massage therapist for the last 21 years. He made significant mistakes 24 years ago and he alone is responsible for his actions. He did not know how to handle stress, anger, loss of love, and a whole host of other emotions. Although he was raised in church, he did not pay attention to the life lessons being taught. He had a strained relationship with his parents and believed joining the military was a great way to make his own way and defend his country. His career began strong, he received promotions, an Army Good Conduct Medal, completed training, and received a number of accolades from senior leadership for his performance. As the Army was downsizing after the war, he requested an “early out” to attend the Spartan School of Aeronautics and his request was approved. c. His final year in the military he made some poor decisions. He failed to declare a pistol he purchased and it was located in his sleeping bag. He received an Article 15 and was reduced in rank. He subsequently had a break up with his girlfriend and sought drugs to ease the pain. That was his first time using drugs, but it was very addictive and he found himself going to purchase more that afternoon. He was caught in a sting attempting to trade his shotgun for more crack/cocaine and money. He was very “stupid” and was eventually released to his unit, he was drug tested, and tested positive for cocaine. He was 100% at fault, his rank was stripped from him, his wages garnished, and he was restricted to the barracks. He subsequently broke down mentally and ran from his problems which led to his charge of absent without leave (AWOL). He was suicidal when he returned and taken in for treatment. d. He has not touched an illegal substance since then, nor will he ever. He looks back on his life and can say that was his worst mistake. Once he was healthy enough he was processed for separation and forgotten; however, he has not forgotten. The mistakes he made as a kid still haunt him daily. The discharge received adversely affected his quality of life in many ways. He is getting older and would like to seek healthcare at the Department of Veterans Affairs (VA) hospital to ensure he remains available and healthy for his three children. He would also like to stop resenting himself for the mistakes he made. He would like a discharge he can be proud of and can once again speak of being a Veteran, proud of his service, and proud to serve his country in wartime. 3. The applicant provides: a. A Certificate of Release or Discharge from Active Duty for his active service from 6 September 1990 to 19 September 1994. b. Three certificates received on/for: * 15 May 2010 an Associate of Science in Surgical Technology from University of Arkansas for Medical Sciences * 13 July 2017 a Massage Therapist Certification from the Arkansas Department of Health * November 2017 a Certification of Tech in Surgery from the National Center for Competency Testing c. Eight letters of support on/from: * 19 June 2001 from DR which states the applicant has been a close personal friend for approximately 5 years; he is kind, caring, helpful, good-natured, generous, loyal, adaptable and suited for any field to help people * 2 July 2001 from DM which states she has known the applicant for approximately 4 years; his is bright, displays a desirable work ethic, timely, works well without supervision, respectful, polite, kind considerate, always willing to lend a hand and she’s honored to call him a friend * 7 July 2001 from PJR, a recommendation for acceptance into the EMT training program; his work ethic is unmatched * 22 May 2018 from Dr. BAT which states he knows the applicant in a professional capacity, he served as a surgical technologist during complex surgical cases; he is organized, thorough, focused, resourceful, goes the extra mile, always prepared, dedicated, and an asset to the department * 24 May 2018 from Dr. EHS which states he knows the applicant in a professional capacity, he served as a surgical technologist during surgery; he comes in early to prepare, he is extremely organized, maintains a clean work area, he is attentive, careful, eager to learn, willing to stay longer to finish the job, diligent, and dedicated * 16 July 2018 from Nurse KD which states she recommends the applicant for employment and has worked with him for four and a half years; his is knowledgeable, willing to assist, positive, has high integrity and standards, he follows hospital policies, organized, always prepared, and provides excellent patient care – he is well respected by the surgeons for his tech skills * 6 August 2018 from Nurse RL which states she has known the applicant for almost three years; his has a strong work ethic, he is good character, stands out above the rest, goes above and beyond, a keen attention to detail, an excellent team player, selfless, efficient, meticulous, organized, he takes initiative, he is punctual, responsible, top notch with solid integrity and excellent work quality * 18 May 2019 from Dr. DR which states he has known the applicant for 4 years in a professional capacity; he anticipates requirements rather than react, he believes he takes pride in providing excellent care to each patient, he goes the extra mile, staying late if needed and calling ahead to time to efficiently prepare for surgeries he is dependable and thoughtful 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 September 1990. b. He served in Alaska from 5 January 1991 to 4 January 1994. c. On 4 February 1991, the applicant submitted a name change request from , to . d. He received nonjudicial punishment on/for: * 28 April 1994 for one specification of wrongful use of cocaine; his punishment included reduction to private/E-1 and forfeiture of $388.00 per month for two months * 14 June 1994 for one specification of going absent without leave (AWOL) from 30 April 1994 to 20 May 1994; his punishment included forfeiture of $442.00 per month for two months e. On 15 June 1994, a Report of Mental Status Evaluation was completed for the purpose of discharge consideration due to misconduct and the remarks noted the applicant’s mental status was within normal limits and he denied suicidal ideations at the time. The applicant had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he was cleared for any actions deemed appropriate by his command. f. On 15 June 1994, the applicant also received a medical evaluation for the purpose of separation and noted in Block 8 (Statement of Examinee’s Present Health and Medications) of the Report of Medical History that his “mental status was improving.” g. On 21 June 1994, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for commission of a serious offense. The reasons for his proposed action were because he received a Field Grade Article 15 for wrongful use of cocaine, he went AWOL from 30 April 1994 to 20 May 1994, and he was involved in a drug related incident with the U.S. Marshals. h. On 23 June 1994, after consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * he may apply to the Army Discharge Review Board or the ABCMR for upgrading * he will be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge i. The immediate commander initiated separation action against the applicant for commission of a serious offense. He recommended that his period of service be characterized as under other than honorable conditions. The intermediate commanders recommended approval. j. On 22 July 1994, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 14, AR 635-200, paragraph 14-12c for commission of a serious offense. He would be issued an under other than honorable conditions characterization of service. k. Orders 53-3, dated 27 July 1994, discharged the applicant with an effective date of 19 September 1994. l. On 2 August 1994, a Chronological Record of Medical Care (Standard Form 600) indicated the applicant was referred to the Mental Health Clinic for testing prior to his discharge. m. On 19 September 1994, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 11 months, and 23 days of active service with 21 days of lost time. It also shows he was awarded or authorized: * Army Service Ribbon * Army Good Conduct Medal * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 4. On 23 December 2005, the applicant was notified the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. On 1 May 2019, a letter was sent to the applicant notifying him that in order for the Army Board for Correction of Military Records (ABCMR) to consider his case, a copy of medical documents that supported his mental issues were required. The letter was returned undeliverable 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. Documentation is insufficient to determine whether or not the applicant had a psychiatric condition for consideration. Accordingly, an upgrade is not supported from a behavioral health standpoint. b. Due to the period of service, active duty electronic medical records were void. Hard copy records were unavailable. The electronic case file contained a June 1994 Chapter Mental Status Exam (MSE) and cleared noting the applicant had safety precautions in place. c. An August 1994 note indicated the applicant was referred for psychological testing with potential diagnoses of Adjustment Disorder and Personality Disorder. The testing data and final diagnosis/es were unavailable. On the separation physical, the applicant endorsed trouble sleeping, depression or excessive worry, and nervous trouble. The physician noted the applicant self-admitted to an Air Force hospital and was in treatment in the behavioral health clinic; however treatment notes, hospital discharge, or any other records outlining diagnosis/es and other data are absent. d. The applicant is not service connected and VA records are void. e. The applicant submitted an August 2018 letter which indicated he received treatment for Substance Use Disorder from October 2014 through December 2015. The letter is void of a psychiatric diagnosis. 7. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 8. By regulation (AR 635-200), action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. 9. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination 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 not warranted. Based upon the misconduct and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service and/or narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X :X :X 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. 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 635-5 (Separation Documents), in effect at the time, states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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. 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 of the regulation states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011541 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1