ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180016417 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 November 2018 * DD Form 293 (Application for the Review if Discharge from the Armed Forces of The United States), dated 5 November 2018 * an article from "Stars and Strips" in which the applicant is partially featured * three third-party character reference statements * certificates of achievement and appreciation * DA Form 638 (Recommendation for Award) * DA Form 4980-18 (Army Achievement Medal (AAM) Certificate) * medical records FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (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 states, in effect, that while serving in the Army he was deployed to Kosovo. The stress of combat led to his depression and bi-polar disorder. When he returned from Kosovo he begin to use drugs. a. Through years of treatment, he realized the drugs were a form of self-medicating, and his drug use was a way of compensating for the emergence of his mental health. He also states he was not afforded the opportunity to seek any health providers while in the service nor any form of drug treatment program. b. After his discharge he struggled with drug addiction; however, he was actively engaged in treatment and sought help for his mental health condition. He’s asking for consideration in reference to the Hagel memorandum [Secretary of Defense memorandum dated 3 September 2014, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder]. He has now gained control of his mind, body, and addiction. c. He served honorably before his deployment to Kosovo and he is now a proud father, he goes to church, he coaches basketball, and he speaks to at-risk children about drugs and the dangers of drugs as a way to teach them that there are better options. He is over ten years sober and continues his treatment. 3. The applicant enlisted in the Regular Army on 31 August 1999. He completed initial entry training and was awarded military occupational specialty (MOS) 12B (Combat Engineer). 4. The applicant attained the rank/grade of private first class/E-3 and deployed to Kosovo during the period 16 July through 30 August 1999, for which he was awarded the Overseas Service Ribbon and the Kosovo Campaign Medal with bronze service star. 5. The applicant accepted non-judicial punishment (NJP) on 22 March 2001, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for: * failing to go at the prescribed time to his appointed place of duty, on or about 25 January 2001 * failing to go at the prescribed time to his appointed place of duty, on or about 28 January 2001 * making a false statement, on or about 10 February 2001 * wrongfully wearing a tongue ring, on or about 22 February 2001 * failing to go at the prescribed time to his appointed place of duty, on or about 27 February 2001 6. The applicant accepted NJP on 23 April 2001, under the provisions of Article 15 of the UCMJ, for: * wrongfully using a controlled substance (psilocybin mushrooms), on divers occasions between on or about 1 December 2000 and on or about 7 February 2001 * wrongfully using a controlled substance (marijuana), on divers occasions between on or about 1 December 2000 and or about 7 February 2001 * wrongfully using a controlled substance (marijuana), on divers occasions between on or about 1 December 2000 and or about 7 February 2001 * wrongfully using a controlled substance, MDMA (ecstasy), on divers occasions between on or about 1 December 2000 and on or about 7 February 2001 * wrongfully using a controlled substance, MDMA (ecstasy), on divers occasions between on or about 1 December 2000 and on or about 7 February 2001 7. The applicant's immediate commander notified the applicant on or before 31 July 2001 of his intent to initiate actions to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for his use of illegal drugs, THC (marijuana), MDMA (ecstasy), and psilocybin mushrooms. 8. The applicant consulted with legal counsel on 31 July 2001 and acknowledged receipt of the proposed separation notification memorandum. a. He acknowledged that he had been advised of the basis for the contemplated separation action for misconduct. He understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. b. He understood that if he received a character of service of less than honorable, he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he realized that an act of consideration by either board did not imply his discharge would be upgraded. c. He waived representation by counsel and consideration of his case by, and personal appearance before, a board of officers. He elected not to submit a statement in his own behalf. 9. The applicant's immediate commander formally recommended his separation from service on 6 August 2001, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of abuse of illegal drugs. 10. The separation authority approved the applicant's discharge on 7 August 2001, under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed that he receive a UOTHC discharge. 11. The applicant was discharged on 29 August 2001. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as UOTHC. 12. In the processing of this case, a medical advisory opinion was provided on 29 May 2019 by an Army Review Boards Agency Staff Psychologist. This individual considered the totality of the applicant's record, his application, and the language of the 2014 Hagel memorandum. In doing so, this official opined that there is insufficient evidence to support the applicant’s contention that his misconduct was due to depression and bipolar disorder he developed during his deployment to Kosovo. Aside from his documented in-service substance abuse behavior, there is no documentation in the available military records that confirms he exhibited any other Behavioral Health-related symptoms or behaviors while on active duty. While he has submitted civilian medical documentation that indicates he is being treated for Opioid Dependence with a self- reported history of bipolar depression, these documents, in and of themselves, do not establish the existence of an in-service psychiatric illness nor do they establish a nexus between his in-service misconduct and his post-service Behavioral Health diagnoses. 13. A copy of the advisory opinion was forwarded to the applicant on 6 June 2019 for his opportunity to rebut the findings or provide additional comment. The applicant did not respond. 14. The applicant provides the following documents that show: a. A Stars and Strips new article that contains a picture of him during a patrol conducted by his squad along Kosovo’s border with Serbia. b. Three third-party character reference statements, in which the authors note the applicant has cleaned up his life and now goes to church. He is a dedicated volunteer with his time, commitment, and hard work. He is respectful and he speaks with at-risk youth about life choices and how making a bad decision can affect their path. He has changed his life, he is off drugs, and he has a heart of gold. c. A Certificate of Achievement and a Certificate of Appreciation, which attest to his hard work, dedication, and professionalism while he was in the Army. d. An award recommendation and AAM Certificate that show he was awarded the AAM for his participation in support of Alpha Company, 82nd Engineer Battalion, during its deployment to the country of Kosovo, and for outstanding performance during the most dangerous operation in Kosovo. e. Medical documents that show he acquired medical help for his mental health and drug addiction. 15. The Board should consider the applicant's statement in accordance with the published liberal consideration, and equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the advisory opinion and published DOD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, to include his post service activities, the frequency and nature of his misconduct, the length of his service, his awards and recognition, the conclusions of the medical advising official and whether to apply liberal consideration. The Board found that the applicant provided no evidence of post-service achievements or letters of reference in support of clemency. The Board concurred with the conclusions of the advising official and found that the evidence of self-reported post-service diagnoses were insufficient to overcome the multiple instances of misconduct. The Board determined that the character of service he received at separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined that 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, U.S. Code, 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b provides that 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. The Secretary of Defense provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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. 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, Boards 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. ABCMR Record of Proceedings (cont) AR20180016417 6 1