ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20180016253 APPLICANT REQUESTS: his general, under honorable conditions discharge be change to an honorable discharge (HD) due to medical reasons. 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 or Dismissal from the Armed Forces of the United States) * Letter from spouse * Letter of support * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Driver License (2) * Marriage License 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 the Army did not try to rehabilitate him correctly. They only ordered counseling; however, medication would have helped him. He was in a state of depression because his grandmother passed away. He was diagnosed with manic depression. He would appreciate benefits and praying for a change. 3. On 30 January 1986, his commander recommended him for discharge under the provisions of Army Regulation 635-200, chapter 9, due to alcohol failure. The applicant’s commander stated the reasons for his prosed action was the applicant’s inability to voluntarily control his personal abuse of alcohol and his failure to successfully complete the Fort Eustis Community Counseling Center Program. The applicant’s commander advised him of his available rights. 4. On 4 February 1986, after consulting with counsel, the applicant submitted a written statement in which he stated in part: a. He had an alcohol problem and had been attempting to deal with it in the last year. He had completed Track II of ADAPCP and was scheduled to attend Track III prior to an incident which occurred outside of the noncommissioned officers (NCO) club. His first sergeant believed he was drunk and disorderly. He disagreed with that assessment. He got into an argument with his wife and was very upset, but he was not drunk. b. He very much wanted to receive the Track III treatment and return to full-time duty. After he was deprived of this opportunity, he enrolled in a civilian alcohol treatment program here in Newport News and believes he is making good progress toward overcoming his alcohol problem. c. Although he has an alcohol problem, this had never interfered with his duty performance. He has been a good Soldier and will continue to serve honorably if given the opportunity to remain on active duty. He asked that he be given the opportunity to overcome is alcohol problem and remain in active duty. 5. On 13 February 1986, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 9, and directed the applicant be furnished a General Discharge Certificate. 6. On 12 March 1986, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9, by reason of alcohol abuse - rehabilitation failure, with a general discharge. He completed 1 year, 9 months, and 8 days of net active service this period. He was awarded or authorized the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar. 7. 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) during his period of active duty. 8. The applicant provide a written statement from his wife which states, in part: a. She has been married to the applicant for over 32 years. They were high school sweethearts. She and her husband would be grateful if the Department of Veterans Affairs (VA) appeal board would review the facts of what took place and the Army failed to treat her husband for his mental distress, diagnosed as manic depression. Her husband had lost his grandmother and he was deeply grieving. He was never treated or evaluated correctly. He was never given anti-depression medication and whatever else he needed as a tool to support his condition. b. Her husband overcame his struggle and they pressed on as a young couple. He was never a fair chance. Her husband has been a professional truck driver for over 29 years. He does not have a drinking problem and is an elder in 2 churches. She and her husband feel cheated out of opportunities and benefits they should have received. They have never owned a home and would like to do so. The applicant’s wife’s complete statement is available for the board’s review. 9. On 11 July 2019, the ABCMR obtained an advisory opinion from a clinical psychologist with Army Review Boards Agency (ARBA), who states, in part, based on a thorough review of available records, the applicant does not have a behavioral health diagnosis and did not submit records documenting a condition for consideration. At this time, there is insufficient information to determine if he had a behavioral health condition while in-service and, if so, whether or not it mitigates the basis for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. On 16 July 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 11. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 9 contained the authority and outlined the procedures for discharging individuals because of alcohol or other drug abuse. A member who had been referred to the ADAPCP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts are no longer practical. At the time of the applicant's separation an honorable or general discharge was authorized. b. Paragraph 3-7a provides that 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 12. Army Regulation 635-40 (Standards of Medical Fitness) establishes the Army Disability Evaluation System (DES) 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. 13. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. A physical profile rating of "3" in any of six rated categories (P-physical stamina, U-upper extremities, L-lower extremities, H-hearing, E- eyes, S-psychiatric) is a basis for referring a Soldier to the PDES. 14. In reaching its determination, the Board can consider the applicant's petition, his statements, and available service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, his enrollment in ADAPCP and the reason for his separation. The Board considered the statement from his spouse and the conclusions of the advising official. The Medical official found no evidence of a behavioral health diagnosis and the applicant provided none; the advising official and the Board found insufficient evidence that the applicant failed to meet medical retention standards. Based on a preponderance of evidence, the Board determined that the applicant’s character of service and reason for separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found the relief was 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. ADMINISTRATIVE NOTE(S): Not Applicable ? 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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 9 contained the authority and outlined the procedures for discharging individuals because of alcohol or other drug abuse. A member who had been referred to the ADAPCP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts are no longer practical. At the time of the applicant's separation an honorable or general discharge was authorized. b. Paragraph 3-7a provides that 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. 3. Army Regulation 635-40 (Standards of Medical Fitness) establishes the Army Disability Evaluation System (DES) 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. A physical profile rating of "3" in any of six rated categories (P-physical stamina, U-upper extremities, L-lower extremities, H-hearing, E- eyes, S-psychiatric) is a basis for referring a Soldier to the PDES 5. 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. 6. 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. ABCMR Record of Proceedings (cont) AR20180016253 7 1