ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180014868 APPLICANT REQUESTS: through Counsel, reconsideration of his prior request for upgrade of his discharge under other than honorable conditions (UOTHC) and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Table of Contents * Self-authored statement * four letters of recommendation * numerous Army certificates, commendations, training documents and a newspaper article * applicant’s correspondence with the Army Review Boards Agency (ARBA), his Member of Congress, and the National Personnel Records Center * 39 pages of service medical records FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140020969 on 16 July 2015. 2. Counsel states: a. The applicant requests reconsideration of his prior request based on newly acquired evidence not previously reviewed by the Board. The Board previously disapproved the applicant’s request for discharge upgrade in part based on the recommendations of his chain of command at the time of discharge. That has now changed. Since the applicant’s discharge, his prior battalion commander, retired Colonel (COL) x____ x____ and another prior battalion commander, retired Lieutenant Colonel (LTC) x____ x____ both recommend the applicant’s discharge upgrade in their letters of support. b. The applicant has also submitted additional letters of support and awards not previously submitted and it is in the interest of justice to review them. c. Counsel states the discharge upgrade appeals for previous clients were positively changed based on the submission of letters from the chain of command and she urges the Board to do the same here and upgrade the applicant’s discharge to general or honorable. 3. The applicant states: a. He believes his discharge may have been inequitable and more harsh than necessary at the time. We know today about addiction and the tools available to help someone were not realized at the time of his discharge. His achievements at the time were not completely taken into account. At no time did he blame anyone else for his dilemma. He takes full responsibility for his actions, but needs to point out some possible mitigating circumstances. b. His drug abuse began innocently enough. While serving with the 3rd Battalion, 67th Air Defense Artillery (3/67th ADA), he injured his ankle heading into a battalion fitness event, competing against other battalions in the military community of Kitzingen, Germany to run 8 kilometers in under 50 minutes. Both he and his squad leader felt it extremely important for him to compete in this event. His squad leader offered him something for the pain to help him get through it. Not only did he get through it, he never felt so good in his life. Unfortunately, this was the beginning of a hell that he never could have imagined that didn’t happen overnight but was more of a slow process over the length of his service commitment. c. During his time in the service, he would surge to physical and mental accomplishments he never thought possible. He was quickly promoted and became very much engaged in any type of challenging competition. He loved it. He truly cared for his fellow Soldiers and was an excellent team mate. He thought he was well on his way to becoming a career Soldier. Having lost his parents at a young age, he felt he found the family he was looking for in the Army. He twice became Soldier of the quarter at 3/67th ADA and once while assigned to the 5th/62nd ADA, at Fort Bliss, TX. He was also recommended for the Army Commendation Medal for competing in the best squad evaluations in Crete, Greece, but that year the award was downgraded to an Army Achievement Medal (AAM). d. During this time of excellence, he was slowly declining. His addiction was growing to insurmountable proportions. While in decline, his chain of command tried desperately to help him, but no one knew how. At times addiction brought him and his superiors to tears. It was an uncontrollable urge that he could not overcome at the time. His deepest abilities did not help. He was trapped and had no one to blame but himself. He actually went absent without leave (AWOL) and locked himself in a room, enduring withdrawal symptoms beyond what he ever thought possible. When he came back, his first sergeant and commander saw he nursed himself back to respectability. They only gave him summary nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) and asked him if he wanted to stay in the Army, which he fervently did. However, he again fell back into the bleak state of addiction. e. He needs to address the reason for his discharge. To the best of his recollection, he misappropriated a vehicle from a fellow Soldier named Private First Class (PFC) x____. He borrowed PFC x____’s vehicle and did not return for 24 hours. He also missed movement with left at 6 am that morning. He arrived back at 8 am and was taken by jeep to the exercise. Having caused PFC x____ undo anxiety and disappointing his fellow Soldiers and chain of command, he apologized to each in turn. He was wrong and understood there were consequences. He had finally reached the end of his rope. For that he will eternally be sorry to his fellow Soldiers. f. At the time, he was so disgusted with himself, he took whatever he had coming his way and felt it was best for the Army that he just leave even though he had no place to go and supposes the Army felt the same. It actually got worse after his discharge. Having nowhere to go, he ended up in Harlem, NY, living in a cardboard box. He officially arrived at complete demoralization; the point of no return. He remembers sitting on steps deciding whether to take his life or plan to somehow live. By the grace of God, he chose the latter. He used all of his learned life and military skills and it took every one of them plus more to begin to dig himself out. g. For a period, he turned to alcohol and quickly learned that was just as bad of an addiction as the drugs were. He chose the recovery route and soon learned by helping other he was helping himself. From there he rose. h. Since then, he has performed successfully in business and in his private life. He was promoted through the ranks at Sysco Food Corporation and then went on to his own business affairs. He must say, the most important part of his life is helping others. He takes special interest in runaway children and veterans seeking assistance from alcohol and drug addiction. This was his true calling. i. After years of regret, some of his fellow Soldiers and commanders urged him to apply to the Board for an upgrade. He was reluctant and even previously applied once without totally understanding the process. At the behest of his comrades and with their coaching, he decided to reapply. He has come to believe his discharge was possibly too harsh and there may be some inequities that were not taken into consideration at the time. He believes his superiors would have been able to help him on the right path if only they had the tools. The Board has the ability to see through everything. Knowing of addiction and its evils as we do today, he hopes the Board can take the entirety of his service into account and correct his discharge. j. He knows the Board can probably not take this into consideration, be he offers to finish his 2 remaining months of service to the Army with no pay by helping out at any Veterans center recommended and will always help Veterans wherever and whenever possible regardless of the outcome of this process. He is available to personally appear before the Board at the time and place of the Board’s choosing. As his former commanders have pointed out, the Army will always be his family. He hopes the Board can forgive his actions and officially welcome him back into the Army family. He will always be a patriot and truly believes in his God, country, duty, and honor. 4. The applicant enlisted in the Regular Army on 14 June 1983. 5. He provided copies of numerous training certificates and commendations, among them are the following: a. He was awarded the U.S. Army Safety Award for driving an Army tracked vehicle 456 miles without incurring an accident or incident from November 1984 through May 1985. b. On 23 August 1985, he was awarded the AAM for meritorious achievement during the 1985 Annual Live Fire Exercise held at Crete, Greece wherein his expertise and dedication helped the squad achieve the top squad in the battalion. He also received a Letter of Commendation for the same exercise. 6. A DA Form 4466 (Army Drug Abuse and Prevention and Control Program (ADAPCP) Client Progress Report), dated 3 September 1985, shows the applicant was released from the ADAPCP facility and the ADAPCP program after program completion. His counselor’s assessment was that the applicant was not progressing during rehabilitation. His commander’s appraisal of the applicant’s progress and military effectiveness were that his efficiency and conduct were satisfactory and he would be retained on active duty. 7. Multiple DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) show he accepted NJP under Article 15 of the UCMJ on the following occasions for the following infractions: * on 20 March 1986, for absenting himself from his unit without authority on or about 3 February 1986 and remaining absent until 3 March 1986 * on 20 March 1986, for missing movement through neglect on or about 7 March 1986 8. On 2 December 1986, he was awarded a Certificate of Achievement for the performance of his duties as the Battalion Soldier of the Quarter, 3rd Quarter, Fiscal Year 1986. 9. He again accepted NJP under Article 15 of the UCMJ on 19 February 1987, for absenting himself from his unit without authority on or about 29 January 1987 and remaining absent until on or about 30 January 1987 and for absenting himself from his place of duty without authority on 4 February 1987 10. A DD Form 458 (Charge Sheet), dated 1 April 1987, shows he was charged with the following: * failing to go to physical training (PT) formation on 17 March 1987 * leaving his appointed place of duty at the battery motor pool from 1100 hours on 24 March 1987 until on or about 1700 hours on 24 March 1987 * failing to go at the time prescribed to PT formation on 25 March 1987 * failing to go at the time prescribed to work formation on 25 March 1987 * failing to go to PT formation on 27 March 1987 * for being AWOL from his unit from 17 March 1987 until 18 March 1987 * for being AWOL from his unit from 29 March 1987 until 20 March 1987 * for willfully disobeying a lawful order from a superior officer on 23 and 24 March 1987 to remain in the battalion area and have and escort when outside the battalion area * for willfully disobeying a lawful order from his superior officer on 31 March 1987 to be restricted to buildings 2903 and 2904, to not go anywhere without a noncommissioned officer escort, and to sign in hourly until he went to bed * for wrongfully appropriating the privately owned vehicle of PFC x____ on * 24 March 1987 and withholding it until 25 March 1987 11. On 1 April 1987, his immediate commander recommended trial by special court- martial empowered to adjudge a bad conduct discharge. 12. A Standard form 558 (Emergency Care and Treatment) record, that appears to be dated 1 April 1987, shows the applicant was admitted to the hospital on the date of the form for non-urgent examination for confinement. The handwritten notes indicate the applicant had a history of cocaine and heroin abuse. He was diagnosed with narcotic withdrawal. 13. On 3 April 1987, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit statements in his own behalf. 14. On 3 April 1987, his immediate commander, Captain x____ x____, recommended approval of his request for discharge and recommended the issuance of a UOTHC Discharge Certificate. He stated the applicant’s failure to adequately adjust and conform to Army standards, his service record, and his drug habit dictate a UOTHC characterization of his service. On the same date, his battalion commander, LTC x____ x___ likewise recommended approval of the discharge and recommended the issuance of a UOTHC discharge based on the seriousness of the offenses, his prior record, lack of rehabilitation, and the applicant’s sporadic performance. 15. On 6 April 1987, his brigade commander, COL x____ x____ recommended approval of the request and based on the seriousness of the offenses committed and the prior records of the applicant, recommended the issuance of a UOTHC discharge. On 9 April 1987, the officer exercising general court-martial convening authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC Discharge Certificate. 16. His DD Form 214 shows he was discharged on 22 November 1987 for the good of the service in lieu of trial by court-martial and his service was characterized as UOTHC. He completed 3 years, 9 months and 11 days of active service during this period with lost time from 3 February1986 through 2 March 1986. 17. The applicant applied to the ABCMR requesting an upgrade of his discharge and on 16 July 1985, the Board denied his request deeming the evidence presented did not demonstrate the existence of a probable error or injustice. 18. The applicant provided four letters of recommendation: a. The first letter is from a former battalion commander, LTC (RET) x____ x____, who was not in the applicant’s chain of command at the time charges were preferred against him or at the time of his discharge. The letter states during his time as the applicant’s battalion commander, he would judge the applicant’s contributions to have been well above the norm with strong potential. He was a natural leader, dedicated, of excellent military bearing, and exceptionally smart. Although he did not assume brigade command due to a medical condition requiring his retirement, he acknowledges he probably would have concurred with the decisions made at the time about the applicant’s discharge, because they had very few realistic tools available to commanders with which to handle drug addiction. He has no doubt the applicant was seriously addicted toward the end of his service and it is not clear that his superiors fully understood his situation and had the tools with which to adequately address his issues. The applicant has carried guilt and remorse over his failure to be honorably discharged for over 30 years and has shown the world his value set by serving his community. He hopes the Board agrees that it is time to restore the applicant’s honor by upgrading his discharge. b. The next letter is from his former battalion commander, COL x____ x____, who endorsed the applicant’s request for discharge in 1987. This letter conveys his support for the applicant’s request to upgrade his discharge. Prior to his arrival at his battalion, the applicant was at times an exemplary Soldier with a fine future in the Army who unfortunately succumbed to the consequences of drug addiction. His accomplishments following his discharge are indicative of a changed life where his talent and determination to restore his pride and dignity have overcome the poor judgment that led to his discharge. He believes the applicant warrants the benefit of the doubt in his request for discharge upgrade. c. He provided a letter of support from a friend and fellow Soldier who served together with him in Basic Combat Training (BCT) and in Germany and attests to what an extraordinary Soldier the applicant was, selflessly helping him to pass BCT. When a man raises his hand to say he will die for his country, then his country should help him when he falls, but the applicant fell and was left behind when he became addicted to pain killers. The Army was good at dealing with alcohol abuse, but not drug abuse. He has excelled in civilian life, becoming a brilliant business man and volunteering for trouble youth. The applicant’s heart hurts carrying around a UOTHC discharge and would trade all of his accomplishments for an honorable discharge. He needs the Board to life this cloud that follows him and grant his request for an upgrade. d. His final letter is from an Adjunct Professor at Rosenstiel School of Marine and Atmospheric Science, who states he has known the applicant for 25 years and he impressed him as a successful Vice President of Metro New York Sysco Foodservices. The applicant eventually joined Alfa Gamma Seafood Group where he built a strong and profitable cruise line business within the confines of that company. Aside from his business acumen, he has an unimpeachable moral compass, is a great father, a patriot, and a model citizen. Please give consideration to upgrading his discharge. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicants statement, his service record, the frequency and nature of his misconduct, his issues with illegal substances, the reason for his separation and whether to apply clemency. The Board found the applicant expressed remorse for his behaviors, provided letters of reference and evidence of post-service achievements and letters of support from his former chain of command. The Board found sufficient evidence of mitigating factors to support an upgrade on the bases of clemency. The Board determined, based on a preponderance of evidence, that the applicant’s character of service should be upgraded. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x :x :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 22 November 1987 to reflect in item 24 (Character of Service) – “General, under honorable conditions”. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a discharge upgrade to “Honorable” or providing for a personal appearance. 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. 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. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20180014868 9 1