ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 August 2019 DOCKET NUMBER: AR20180015715 APPLICANT REQUESTS: his general discharge under honorable conditions be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 undiagnosed stress management and mistreatment of the subsequent depression led to self-medication. The stresses of separation from his family, basic training, and his work as an emergency medical technician (EMT) and medical specialist compounded the resulting depression leading to his substance abuse. Since his discharge, his substance abuse, stress management, and depression have been successfully treated and managed through a recovery program available to the general public. 3. On 22 January 1996, the applicant accepted non-judicial punishment for wrongfully using cocaine on or between 4 November and 14 November 1995. 4. On 7 February 1996, the applicant underwent a mental evaluation which found the applicant met retention standards and there was no psychiatric disease or defect which warranted disposition through medical channels. 5. On 23 February 1996, the applicant's commander notified him that action was being initiated to discharge him for serious misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 12c for commission of a Serious Offense. The reason for this action the applicant’s wrongful use of cocaine. The commander was recommending a General 1. Discharge Certificate. The applicant was advised of his available rights and he acknowledged receipt. 6. On 26 February 1996, after having been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct the applicant acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He also acknowledged that as a result of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. He indicated he was submitting a statement in his own behalf. 7. In response the separation action, the applicant submitted the following statement: a. This chapter does not reflect the rehabilitative efforts he made to recover from a chemical dependency. All that is represented is negative information. Separations are designed to avoid the degradation of morale in a unit and to eliminate substandard mission performance. He had enclosed a copy of his ADAAPCP Patient Progress Report, showing record of a “Good” rehabilitative effort. He also included a copy of his discharge report form Shepard Air Force Base Alcohol Rehabilitation Center with similar findings. b. He would like it to be known he is currently involved in an anonymous, lifelong, recovery program that requires rigorous honesty, abstinence and community service. However, because of the anonymous nature of this program, he has no record of his involvement. c. His conscious decision to involve himself in these recovery programs is the attempt he is making to clean up his life and become an upstanding, model citizen. In order to avoid prolonged, substantial prejudice, he believes an Honorable Discharge is necessary and warranted and is requesting such. 8. On 12 March 1996, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for a commission of a serious offense. He directed the applicant be issued a General Discharge Certificate. 9. On 19 March 1996, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c. He completed 3 years and 18 days of net active service that was characterized as under honorable conditions (general). He was awarded or authorized the following: * United Nations Mission in Haiti Medal * Army Achievement Medal * National Defense Service Medal * * Marksman Marksmanship Qualification Badge with Rifle Bar * Driver and Mechanic Badge with Driver –W Bar 10. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 11. On 20 August 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, the reviewed documents do not support the existence of a boardable behavioral health condition at the time of discharge. The applicant’s records indicate he did meet medical retention standards. The applicant did not have a behavioral health diagnosis to consider as a mitigating factor for the misconduct that led to his discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 21 August 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 13. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled 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. Paragraph 14-12c(2) of chapter 14 stated that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is 1. provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 15. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for liberal consideration of discharge upgrade requests, the Board determined relief was not warranted. The Board considered the applicant's statement, the misconduct which resulted in the applicant’s separation and the conclusions of the medical advising official. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service. 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, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled 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. Paragraph 14-12c(2) of chapter 14 stated that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. 3. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty and must not have completed of more than 179 days of active duty on the current enlistment by the date of separation. The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self- discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. 1. 4. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 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.