BOARD DATE: 7 April 2020 DOCKET NUMBER: AR20180014462 APPLICANT REQUESTS THROUGH COUNSEL: * an upgrade of his Chapter 10, under other than honorable conditions discharge to honorable * a change to his narrative reason for 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 458 (Charge Sheet) * Massachusetts Criminal Offender Record Information * Medical documents 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. The U. S. Army involuntarily created a substance dependency by the protracted prescription of the narcotic pain killer Percocet. Starting from 14 May 2002 and continuing for the balance of his military service (approximately 8 months), he was prescribed a daily dosage of Percocet. Lieutenant CSP, at the Robinson Health Clinic, Womack Army Medical Center, Fort Bragg, NC, and his superior officers, should have recognized the changes in his military behavior and service performance. As there were indicators of a rapidly growing dependency on pain-killers caused primarily from untreated spinal injuries. The Army should have taken a more aggressive medical and physical treatment approach, intervened in the use of the addictive substance, Percocet, and then re-evaluated his fitness for return to duty status. b. The request for an upgrade of his discharge is not a denial of Charge II, Specifications 1 and 2 noted in Violation of the Uniform Code of Military Justice (UCMJ), Article 83, Charge Sheet dated 19 November 2002. However, the Specification of Charge I is false. I was not convicted of possession of cocaine. In fact, the charge was a misdemeanor, possession of a Class D controlled substance, marijuana which was dismissed as a non-conviction and closed without a finding. He did not deliberately conceal this accusation because it was not adjudicated and the incident had escaped his mind. He does believe, however, that this unrelated embellished Charge I Specification was included in the Charge Sheet to deliberately color the character of the UCMJ violation to ensure that his commanding officer would not show leniency. c. He believes the Army involuntarily created a substance dependency by the protracted prescription of the narcotic pain killer Percocet. Early after the jump accident, he was put on muscle relaxants and pain medications. He is not sure when Percocet was started. These regimens and light duty went on for 8 or 9 months. When medical personnel suggested they would be attempting to wean him off pain-killers, the pain still persisted as it does to this day. He sought to obtain alternatives out on the economy. He knows this was wrong and also regrets it to this day. Please accept his apologies to his command and the Army. d. After a decline in his military behavior and an increasing dependency on pain medications became apparent. He thinks medical and command personnel should have taken a more aggressive treatment approach such as surgery, intervention with a substance abuse program, and followed up with a re-evaluation of his fitness to return to duty rather than threatening the extreme action of a court-martial or except an "Under Other Than Honorable Conditions (UOTHC)" discharge. Prior to his night jump accident on 23 October 2001, he believed he had been an exemplary Soldier. Having received the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Parachutist Badge. Up until then, he thought he was on his way to a career doing what he loved. 3. On 7 March 2001, in connection with his enlistment into the Regular Army, the applicant signed and completed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States) and indicated in pertinent part, that he had never used, tried, and possessed cocaine or marijuana. 4. On 20 March 2001, the applicant competed an Enlistment Eligibility Questionnaire and he was asked in pertinent part: a. “Have you ever been arrested, charged, cited, held, or detained in any way by an law enforcement agency (to include Juvenile Authorities, Police Officers, Sheriff, Department of Natural Resources, Fish and Game Wardens, military police, etc.,) regardless of disposition (whether the case resulted in no charges filed, fine, probation, dismissal, or other disposition)? (This includes traffic tickets.)” The applicant indicated yes; however, he did not list being charged by for possession of marijuana and cocaine on 14 March 1998. b. “Have you been told by anyone (judge, lawyer, any Army personnel, family, friends, etc.,) that you do not have to list a charge because the charge(s) were dropped, dismissed, not listed, expunged, stricken from the record or were juvenile related?” The applicant indicated no. c. “Have you ever been charged with any crime that has not been listed in any of the above questions or asked on the SF 86 (Questionnaire for National Security Positions)?” The applicant indicated no. 5. On 9 April 2001, he enlisted in the Regular Army for a period of 4 years. 6. His service record shows: * 4 February 2002, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful command from a superior commissioned officer * 22 March 2002, a National Agency Check for the applicant revealed he was charged on 14 March 1998 with possession of cocaine and marijuana; this charge was not previously listed on his enlistment packet; and the results must have been reviewed by the special court-martial convening authority * 30 April 2002, in a sworn statement, he stated in pertinent part, he did not tell his recruiter about any of the offenses including disorderly conduct, trespassing on private property, simple assault/battery, or possession of marijuana; he was charged with the offenses, but some of them were dropped * 24 July 2002, he tested positive for cocaine * 13 August 2002, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using cocaine * 4 September 2002, the applicant tested positive again for cocaine 7. On 17 October 2002, a Criminal Investigation Division (CID) report shows: * 10 May 2002, while at Fort Bragg, NC; the applicant committed the offense of simple assault; the matter was investigated and documented in Military Police Report (MPR) 2002MPC023-I106R with no disposition shown * 4 May 2002, while at Fort Bragg, NC, the applicant committed the offense of driving while his license was suspended; the matter was investigated and documented in MPR 2002MPC023-1050R * 24 July 2002, while at Fort Bragg, NC, the applicant committed the offense of wrongful use of a controlled Substance; the matter was investigated and documented in CID Report of lnvestigation with no disposition shown * the applicant’s commander stated he intended to take action against him amounting to a court-martial 8. On 19 November 2002, court-martial charges were preferred against the applicant for: * deliberately concealing the fact that he was charged with possession of cocaine and marijuana, and procured himself to be enlisted in the U.S. Army * wrongfully using cocaine on 2 occasions 9. On 6 December 2002, the applicant voluntarily requested to be discharged in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). a. He consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, its effects, and of the procedures and rights available to him. b. The applicant indicated that he understood that he could receive a under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran's benefits and he may expect to encounter substantial prejudice in civilian life because of an UOTHC discharge and elected not to submit statements in his own behalf. c. His chain of command recommended approval of his request to be discharged and that he receive an UOTHC discharge characterization. There were no legal objections to the further processing in accordance with the unit commander's recommendations d. The separation authority approved the applicant’s request for discharge and directed he be furnished an “Under Other Than Honorable Conditions” character of service. 10. On 2 January 2003, the applicant was discharged accordingly. He completed 1 year, 8 months, and 24 days of net active service. He was awarded or authorized the: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Parachutist Badge 11. In support of his case, the applicant provided Massachusetts Criminal Offender Records Information and medical documents that will be considered and reviewed by the Board and the Army Review Board Agency medical staff. 12. The applicant contends….for which he was not convicted. His record shows a multitude of indiscipline, offenses and investigations took place starting as early as February 2002, which include him testing positive for cocaine in July and September 2002. a. The applicant is correct in stating he was not convicted of court-martial charges because his record shows he voluntarily requested he be discharged in lieu of court- martial charges preferred against for possession of cocaine and marijuana, and wrongful use of cocaine of two occasions. b. Army Regulation 635-200, chapter 10 stated that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged in-lieu of trial by court-martial. 13. the applicant states as a result of a jump injury, a decline in his military behavior and an increasing dependency on pain medications became apparent and believes the Army should have taken a more aggressive treatment approach such as surgery, intervention with a substance abuse program, and followed up with a re-evaluation of his fitness to return to duty rather than threatening the extreme action of a court-martial or voluntarily requesting to be discharged. 14. Per the ARBA Medical Advisor, the applicant’ misconduct is not mitigated by his asserted substance dependence. He met medical retention standards at the time of his discharge and does not have a service connected disability rating. The applicant had a history of drug use (marijuana) prior to military service. In his statement to the CID agent he acknowledged the marijuana found in his car was his and denied the cocaine belonged to him from his civilian arrest on 14 Mar 1998. On 24 Oct 2001, The applicant was seen for a knee sprain and prescribed Motrin 800mg, given crutches and put on 24 hour quarters. On 26 Oct 2001, he was prescribed naproxen and a physical therapy consult was entered. On 16 Nov 2001, the provider noted The applicant had not gone to physical therapy as directed and was proscribed Naproxen (anti-inflammatory) and Flexeril (muscle relaxer). On 14 May 2002, he was seen for back pain and continued knee pain. He was given a knee brace and prescribed Percocet, Naproxen and Flexeril. His medications were renewed at his appointment on 1 Jul 2002. On 24 Jul 2002, he completed a unit urinalysis test that came back positive for cocaine. On 30 Jul 2002, The applicant was seen for continued back pain. His provider noted a mild disc bulge, diagnosed him with musculoskeletal back pain with no evidence from MRI for symptoms. He put in a consult for physical therapy, directed the applicant to discontinue Naproxen, Flexeril as needed, and wean off Percocet. On 26 Aug 2002, the applicant was seen for his physical therapy intake. On 4 Sept 2002, The applicant tested positive for cocaine again. On 27 Sept 2002, his provider noted he was still prescribed Flexeril for his back pain. On 1 Nov 2002, the physical therapist noted The applicant had still not attended the prescribed physical therapy back class and was non- compliant with rehabilitation program. The applicant had a history of drug use prior to military service and his first positive urinalysis for cocaine use was while he was prescribed Percocet and before his provider began weaning him off Percocet. The applicant does not have a behavioral health condition to consider as a mitigating factor for the misconduct that led to his discharge. 15. Army Regulation 600-85 provides policy regarding ASAP and defines drug abuse as the possession or use of controlled substances, or illegal drugs, or the nonmedical or improper use of other drugs, such as prescriptions. 16. Army Regulation 635-200, chapter 10 stated that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged in-lieu of trial by court-martial. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for 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 noted the facts presented above. The Board noted that he had legal counsel, that he acknowledged by his initials that his rights were explained to him by legal counsel and that he understood them, that he voluntarily requested discharge under the provision of Chapter 10, in lieu of trial by court-martial, that he declined to submit a statement in his defense, that he acknowledged his understanding that by requesting discharge, that he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge, and that he could receive a discharge under other than honorable conditions. 2. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 3. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 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, 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 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged in lieu of trial by court-martial. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. 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. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. Army Regulation 600-85 (Army Substance Abuse Program) defines drug abuse as the use of possession of controlled substances, or illegal drugs, or the nonmedical or improper use of other drugs (i.e. prescription) and must intervene early and refer all soldiers suspected or identified as alcohol and/or drug to the ASAP and should recommend enrollment based on the soldier's potential for continued service. ASAP policy provides the following in regarding illegal drugs and sanctions. a. The commander is required to immediately report all offenses illegal possession, use, sale or trafficking in drugs/drug paraphernalia to the provost marshal for investigation or referral to the USACIDC. b. The commander will refer all soldiers identified as drug abusers, without exception, will be referred to ASAP counseling center for screening. (1) Non-dependent drug users were to be enrolled in ASAP if clinically recommended and unit commander concurrence. (2) Drug dependent soldiers do not have potential for continued military service and should not be retained. These soldiers were to be referred to a VA hospital or civilian program by the ASAP clinician to continue (or to initiated) their treatment, be considered for disciplinary action under the UCMJ and processed for separation. Soldiers identified as drug dependent would be detoxified and given appropriate medical treatment. Soldiers would also be considered for disciplinary action under the UCMJ, consistent with this regulation and Rule for courts-martial 306, MCM. In cases where the chain of command has referred the matter to a trial by court-martial, administrative separation proceedings will be delayed until the completion of the court-martial process. 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. 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) AR20180014462 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180014462 10 ABCMR Record of Proceedings (cont) AR20180014462 8