BOARD DATE:  13 August 2020

DOCKET NUMBER:  AR20190002484


APPLICANT REQUESTS: 

*	an upgrade of his bad conduct discharge to a general under honorable conditions 
discharge or higher
*	personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Self-Authored Statement (5 pages)

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 and/or describes: 

     a.  How he joined the Army to prove his worthiness and to serve for the U.S., as his 
dad told him to do.  His father was in the military and had issues in the service because 
of his drinking.  He raised the applicant and his 11 siblings under strict and abusive 
conditions.  The applicant moved out of the home on his 17th birthday and lived on his 
own.  He worked parking cars at an upscale nightclub.  He was still in high school and 
needed two credits to graduate.  He witnessed his girlfriend being hit by a car; she did 
not die but was in a coma.  He joined the Army to escape from reality and to start a new 
life.  He was told by the recruiter to lie about being a high school graduate and not to 
mention he just got out of a drug-alcohol treatment center.  He was told by his counselor 
to take part in the treatment because it would look good in front of a judge.  He was 
sought after by the court system for aiding in the underage drinking of his girlfriend who 
was in coma; she later died.  

     b.  He was told he would become an E-7 at enlistment and has the documents to 
prove it.  He was also told he would attend basic training (BT) at Fort Campbell, KY.  He 
did well in BT and in advanced individual training (AIT) as a combat engineer.  He was 
assigned overseas to Germany in an Engineer unit as an Armor.  He took out of a 
garbage can to use for oiling weapons and during a health and welfare inspection the 
syringe was found in his locker.  It was unknown to him if it had been used to inject 
heroin.  There were no drug, paraphernalia, or marks found on his body.  One one 
hundredths of a gram of heroin was found in the syringe; therefore, he lost his security 
clearance needed for the company Armor position and payed a fine.  After being on 
probation for a month, he left Germany for leave in Minnesota.  

     c.  Before he returned, he spoke with a drug treatment doctor at the Department of 
Veterans Affairs (VA) Hospital in Saint Paul, MN, who told him not to worry about 
returning or being absent without leave (AWOL).  He admitted the applicant to the VA 
treatment center for seven weeks.  While he was there, every chance he had he visited 
with war wounded Vietnam veterans.  They played cards and chess and he aided in the 
feeding.  He pirated food to one who had lost his lower jaw.  He was asked where he 
wanted to go for more treatment and he stated he would like to be treated at Fitzsimons 
Army Hospital, Denver, CO, for seven weeks.  He aided amputees in ski lessons at 
Loveland Ski Area.  He received orders to be reassigned to Fort Carson, CO, with a CC 
(courtesy copy) to base commander, company commander, and a base psychologist to 
be "Returned" back in 30 days to Fitzsimons Army Medical Hospital for reevaluation (as 
shown in records).  Consequently it did not happen.  If it had, he would have been 
discharged for psychological reasons. 

     d.  He described how he was recognized by the base commander for his skills as a 
M-113, APC (Armored Personnel Carrier) operator and how he received pro-pay 
(proficiency pay) combat pay because of his test scores.  He explained how his 
personal property, located on base, was stolen on three occasions; he was physically 
attacked on two occasions; and a squad leader from another squad sexually confronted 
him on two occasions, with no recourse. 

     e.  He asserts his disciplinary problems in the service were all connected to his 
psychological instability.  He explains how on 13 occasions, he was caught with pot 
(marijuana) but he was only charged once while leaving a demolition range; how 
charges were dismissed regarding him possessing Army property; the circumstances, 
which led to his court-martial proceedings for larceny of motorcycle parts.  He detailed 
the discrepancies in his court-martial proceedings record or trial; how there was an 
agreement for him to be assigned to the Retraining Brigade, Fort Riley, KS and to 
receive an honorable discharge, but he was confined to the U.S. Disciplinary Barracks 
(USDB), Fort Leavenworth, KS and received a bad conduct discharge.  He summarized 
his life at the USDB; his life after discharge; issues he had with VA; and how he 
survived on Social Security Disability Benefits for being bi-polar, diagnosed by a 
psychiatrist who had treated him since he was 13 years old.

     f.  He filed a VA review in 1975 and received notices of rejection for 43 years and 
was given the wrong advice.  He met someone in Washington, DC, who told him he was 
getting the run around by VA.  On 19 November 2018, he attended a VA hearing and 
was told he had it backwards and he had to first apply for an upgrade of his discharge 
with the Department of Defense.  He has been clean and sober for 30 years and worked 
for years in the human services field.  He has the phony records, which were used in 
1975 of his general court-martial proceedings, which omits pertinent service information 
and incorrectly states that he served in Vietnam.  He asks the Board for their honest 
attention and consider upgrading his discharge to a general or higher discharge. 

3.  On 5 January 1972, the applicant enlisted in the Regular Army for a term of 3 years, 
at the age of 18 years old.  

4.  In connection with his enlistment, he completed:

     a.  DA Form 3286 (Statements for Enlistment), dated 3 January 1972, which shows 
he acknowledged the enlistment options:  He would be initially assigned to the school 
course or Army Career Group (ACGP) training of his choice, i.e., School Course ACGP 
Number 12 and School Course or ACGP Title Combat Engineering and he would be 
assigned to U.S. Army Europe.  Under the ?Acknowledgement? section, item l, it states 
?Any other promises, representation, or commitment made to me in connection with my 
enlistment is written below in my own handwriting or is hereby waived (if none, write 
?None?)?; the applicant stated ?None.?  The form is void of any reference regarding the 
applicant enlisting at the grade of E-7.

     b.  SF Form 93 (Report of Medical History), in which the applicant indicated he had, 
among other medical conditions, a history of depression or excessive worry.  His 
occupation, at the time, was listed as a student.  He had been a patient or treated by a 
physician at Saint Jose Hospital, Mankato, MN.  A letter from the Diagnostic Center, 
Mankato, MN, dated 3 January 1972, revealed the applicant was hospitalized due an 
accident in which he was struck by an automobile on the highway.  He suffered 
fractures to his pelvis and a laceration of the chest.  The physician determined there 
was no evidence of permanent disability.

     c.   SF Form 88 (Report of Medical Examination) shows his clinical evaluation as 
normal with the exception of identifying body marks, scars, tattoos; noting there was a 
scar to his upper rib cage.  The form included comments regarding pelvis x-rays; 
however, the majority of the writing is illegible.

     d.  USAREC Form 191-R (Statement of Law Violations), endorsed by the applicant 
on 4 January 1972, in which, he indicated he had no ordinance and law violations and 
offenses (including minor traffic offenses) for which he had been arrested, cited, 
charged or held by a Federal, State, County, City or other law enforcement authorities, 
or by juvenile court or juvenile probation officials, regardless of the outcome of his case.

     e.  DD Form 4 (Enlistment Contract), endorsed by the applicant on 5 January 1972, 
which shows in item 3 (Rate/Grade):  PVT 1, E-1.  

     f.  DD Form 398 (Statement of Personal History), endorsed by the applicant on 
2 November 1972, shows the applicant indicated that he attended high school from 
1967 to 1971 and he graduated.  He was on active duty at the time he completed this 
form.

5.  On 17 January 1972, he was assigned to BT at Fort Campbell, KY.  On 11 March 
1972, he was reassigned to AIT for the military occupational specialty (MOS) 12A 
(Pioneer); he was awarded the primary MOS 12B (Combat Engineer).

6.  After completing initial entry training, he was assigned overseas to A Company, 
237th Engineer Battalion in Heilbronn, Germany, which according to his enlisted 
qualification record, he performed the duties of Pioneer and Heavy DP (dump) Truck 
Driver.  

7.  On 24 November 1972, he accepted nonjudicial punishment (NJP) for wrongfully 
possessing one gram, more or less of heroin at Camp Cheb, Grafenwohr Training Area, 
Grafenwohr, Germany.

8.  DA Form 3349 (Medical Condition – Physical Profile Record), dated 23 February 
1973, shows the Department of Psychiatry, Fitzsimons General Hospital, issued a 
profile to the applicant stating he was returned to his unit for duty and medically 
qualified for further military duty.  Section C – Assignment Restrictions, or 
Georgraphical, or Climatic Area Limitations, the psychiatrist stated referral to drug 
rehabilitation center at duty station.  In his opinion, the patient?s psychiatric difficulties 
and abuse of drugs were closely related to the availability of drugs at his last station.  
He strongly recommended that the applicant be assigned to the continental United 
States (CONUS) so that his rehabilitation could continue at his next station.  If he 
returned to Germany, he felt rehabilitation would fail.  The conditions were temporary 
and the applicant was to report to a medical facility in 30 days for further physical profile 
evaluation or medical treatment and disposition.

9.  Fitzsimons Army Medical Center (FAMC) Orders, dated 26 March 1973, show the 
applicant was assigned to (FAMC), at the time, and reassigned to Fort Carson, CO, with 
a report date of 29 March 1973.  There is no reference to the applicant returning to 
FAMC for reevaluation.

10.  On 9 April 1973, he was reassigned to Fort Carson, CO, as a Pioneer.  On 16 July 
1973, he accepted NJP for wrongfully possessing one ounce, more or less of marijuana 
on 27 June 1973.  

11.  U.S. Department of Justice, Federal Bureau of Investigation reports, dated 
28 December 1973 and 10 January 1974, show information from the National Crime 
Information Center revealed the applicant was held in city jail for possession of 
marijuana and using military explosives.  Two DA Forms 1989 (Report on Status of SM 
(Service Member) Arrested/Confined by Civil Authorities), undated, indicated the 
applicant was present for duty and all charges had been dropped.

12.  Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, Orders, dated 
10 April 1974, show he was awarded proficiency pay in accordance with AR 600-200, 
paragraph 6-21 while assigned to the 4th Engineer Battalion.

13.  On 22 July 1974, the applicant was convicted by general court-martial, pursuant to 
his pleas, for one charge and specification of Article 121 –– Larceny, in that he stole the 
front fork assembly, gas tank, and seat, of a value in excess of $100.00, the property of 
Specialist Four C_ D_.  He was sentenced to a bad conduct discharge, confinement at 
hard labor for six months, a total forfeiture of pay and allowances, and a reduction to 
Private E-1.  The sentence was approved on 21 August 1974.

14.  Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, Orders, dated 
2 August 1974, show the applicant was reassigned to the U.S. Army Retraining Brigade 
(USARB), Fort Riley, KS, with a report date of 6 August 1974.

15.  U.S. Army Retraining Brigade, Fort Riley, KS, Orders, dated 13 August 1974, show 
the applicant was reassigned to U.S. Army Correctional Holding Detachment, U.S. 
Disciplinary Barracks (USDB), Fort Leavenworth, KS, with a report date on the same 
date.

16.  On 14 August 1974, the applicant underwent a medical examination while in 
confinement at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  In connection 
with his medical examination, the following documents were completed:

       a.   A Report of Medical History, which he indicated he had a history of, among 
other medical conditions, of frequent trouble sleeping but had no history of:

*	Depression or excessive worry
*	Loss of memory or amnesia
*	Nervous trouble of any sort
*	Periods of unconsciousness

       b.  A Report of Medical Examination, which the physician indicated that all 
conditions examined during his clinical evaluation were normal.  The form is void of any 
psychological and/or psychomotor tests results.

17.  The Review of the Staff Judge Advocate (SJA), dated 16 August 1974 (6 pages), in 
regards to the general court-martial case against the applicant, provided the personal 
data, synopsis of the record, opinion, and recommendation.  The SJA stated and/or 
discussed, in pertinent part:  

     a.  There was a psychiatric report (the record is void of the report), which determined 
the applicant was mentally competent and responsible.  The circumstances surrounding 
the psychiatric evaluation provided:

          (1)  During the portion of the trial where the military judge questioned the 
applicant in order to determine whether his plea of guilty was made knowingly, 
intelligently, and providently, it appeared that the applicant had some doubt as to his 
mental responsibility at the time he performed the acts amounting to the theft.  The 
Military Trial Judge directed that the applicant to undergo a psychiatric examination in 
order to determine whether or not the applicant was mentally responsible at the time of 
the offense.  Appellate Exhibit II (unavailable for review) was a letter from the 
prosecutor referring the applicant to the Department of Psychiatry at Fort Carson 
Hospital, which set forth the circumstance of the alleged offense and requested certain 
findings concerning the applicant?s mental responsibility and competence.

          (2)  Appellate Exhibit I (unavailable for review) was the evaluation of Chief of the 
Department of Psychiatry, Fort Carson, CO, reflecting that it was his opinion that the 
applicant was mentally responsible at the time of the alleged acts, was mentally 
competent to stand trial and assist in his own defense, and had no psychiatric disease 
at the time of the examination.  The applicant?s plea of guilty was properly accepted and 
thereafter, nothing inconsistent with the plea was presented in court.  The informed plea 
of guilty established the applicant ?s guilty beyond a reasonable doubt.

     b.  The Military Judge recommended that the convening authority consider 
suspending his bad conduct discharge and reassignment to the USARB, Fort Riley, KS.

     c.  In the SJA?s opinion there were no errors that materially prejudiced the substantial 
rights of the applicant; the applicant was mentally competent both at the time of trial and 
at the time of commission of the offense; his plea of guilty was properly accepted and 
established the applicant?s guilt beyond a reasonable doubt, and the findings were 
correct in law and fact.

     d.  Additionally, the SJA provided matters which may be considered for clemency 
which included matters presented by the prosecutor, the defense counsel, the 
applicant?s civilian background, his military record, general evaluation of the applicant.    

          (1)  In the SJA?s general evaluation, he stated at the post-trial interview, the 
applicant presented an excellent military appearance and was cooperative in 
responding to questions.  The applicant stated that he wished to return to active duty 
because his completion of his term of service would represent his attainment of a goal 
that he had set for himself.  He stated that he was also interested in receiving education 
benefits and a discharge under honorable conditions.  

          (2)  For defense in extenuation and mitigation, the applicant made a statement.  
The applicant stated he lacked a few credits toward a high school diploma upon his 
entry onto active duty in the Army.  He received his diploma while at Fort Carson, CO, 
by taking courses at Saint Mary?s High School.  He served for eight months in German 
in January 1973 when he sought help for his drug problem, he acquired in Germany 
from the Veteran’s Administration Center in Minneapolis.  The center treated him for 
seven weeks and then he was transferred to Fitzsimons U.S. Army Hospital, Denver, 
CO.  He managed to overcome the drug problem and he was not using drugs at the 
time.

          (3)  The SJA discussed the sentence and the duties of the convening authority.  
He recommended that the sentence as adjudged be approved and he the applicant 
transferred to the USDB, Fort Leavenworth, KS.  The defense counsel received a copy 
of the review and elected not to submit material to the convening authority in 
explanation or rebuttal.

18.  DD Form 1478 (Prisoner’s Summary Continuation Sheet), dated 20 August 1974, 
stated/revealed, in pertinent part: 

       a.  The social history was obtained by the inmate (applicant):  He left home at the 
age of 18 years old.  He had a brief psychiatric hospitalization and residence in a drug 
treatment program due to a possible oral drug overdose of which he was unaware.  He 
had some difficulty related to alcohol abuse.  He graduated from high school where he 
maintained above average grades.  

       b.  The summary revealed he was received from the USARB where he had made 
favorable initial adjustment following his mistake in shipment from Fort Carson, CO.  He 
received several Article 15s, under the Uniform Code of Military Justice, for drug 
offenses but sought treatment and appeared to be making a sincere effort at 
psychological improvement.  

       c.  The social worker recommended restoration because the applicant adjusted well 
at the USARB and appeared to have some restoration potential; however, a favorable 
recommendation was premature.  There were not specific indications for clemency. 

19.  The USDB Form 198 (Restoration Statement), dated 13 September 1974, shows 
the applicant did not desire restoration; he did not want to go back to duty.  He stated he 
desired clemency because the punishment has shown him that he was wrong and he 
would never try to break the law in which he had broken.  He would be as good as he 
could be to the best of his knowledge under the law.

20.  DD Form 1479 (Prisoner Assignment and Clemency Board Action), dated 
11 November 1974, shows the applicant did not desire restoration although the 
disadvantages of a bad-conduct discharge was thoroughly explained to him prior to the 
board proceedings.  The clemency board recommended remission of the Applicant’s 
unexecuted portion of his sentence to confinement.  The board felt his excellent 
adjustment to confinement indicated maximum benefits had been achieved.  The 
commander concurred with the disposition.

21.  ODCSPER Form 440 (Clemency and Parole Action Record), dated 20 November 
1974, shows there was drug abuse and the applicant was hospitalized at Fitzsimmons 
for seven weeks because of a drug overdose.  He felt he had conquered his drug 
problem.  His USDB record had been good, advance to minimum A custody.  His 
sentence to confinement expired on 20 December 1974 and the commandant 
recommend remission.  

22.  On 3 December 1974, the unexecuted portion of the applicant?s sentence to 
confinement was remitted and he was restored to duty pending completion of appellate 
review.  On 6 December 1974, the USDB placed him on excess leave pending 
completion of Appellate Review.

23.  On 20 January 1975, the U.S. Army Court of Military Review (USACMR) found the 
findings of guilty and sentence as approved by proper authority correct in law and fact 
and determined, on the basis of the entire record that the findings of guilty, and only so 
much of the sentence as provides for bad-conduct discharge, confinement at hard labor 
for six months, forfeiture of $200.00 pay per month for six months, and reduction to 
Private E-1 should be approved, the same as modified were affirmed.  On 19 May 1975, 
the sentence, as modified, was ordered executed.

24.  His enlisted qualification record shows his conduct and efficiency were rated as 
excellent from 12 January 1972 to 24 September 1972 and unsatisfactory from 
25 September 1972 to 23 December 1972.  His conduct and efficiency were not rated 
while he was in confinement and on excess leave.  He was awarded the Vietnam 
Service Medal, and the Vietnam Campaign Medal; however, his record of assignments 
is inconsistent, in that it does not show he served in Vietnam.  It also shows he received 
a high school diploma in 1971.

25.  On 11 June 1975, the applicant was discharged with a bad conduct discharge 
under Army Regulation (AR) 635-200, paragraph 11-2 (Bad Conduct Discharge), with a 
under other than honorable conditions character of service.  He completed 3 years and 
20 days of his 3-year contractual obligation, with 137 days lost due to confinement.  His 
DD Form 214 (Report of Separation from Active Duty) shows he was awarded or 
authorized a National Defense Service Medal and M16 Rifle Sharpshooter 
Marksmanship Qualification Badge.  

26.  The applicant requests an upgrade.  He states he was raised as a child under 
abusive conditions.  He witnessed his girlfriend, at the time, being hit by a car who was 
left in a coma but eventually died from her injuries.  He was sought after by the court 
system for aiding in her underage drinking and enlisted to get away it all.  He was told 
by his recruiter to lie about graduating from high school and not to mention he was in a 
drug treatment program.  He was to enlist at the grade of E-7.  While in service he was 
admitted to a drug treatment program.  After the program, he received orders for 
assignment at Fort Carson, CO, with instructions for him to return in 30 days for 
reevaluation.  While assigned to Fort Carson, CO, Soldiers physically attacked him and 
a squad leader from another squad sexually confronted him on two occasions.  He was 
tried by general court-martial but he should have been tried by a special court-martial.  
His general court-martial had several inconsistencies and he has the documents to 
prove it.  After trial he was to be reassigned to the USARB for 2 years in order to 
receive an honorable discharge but after being briefly being at the Retraining Brigade, 
he was reassigned to confinement at Fort Leavenworth, KS.  His misconduct was a 
result of his psychological instability.  He was told by the VA that he needed to apply for 
an upgrade.

       a.  His record shows he enlisted at the age of 18 years old.  He completed training 
and was awarded MOS 12B with conduct and efficiency ratings of excellent.  He 
accepted two NJPs, he was convicted by general court-martial; and he had 137 days 
lost due to confinement.  He completed a total of 3 years and 20 days of his 3-year 
contractual obligation.  The time he served over his contractual obligation is contributed 
to the time he was accredited while on excess leave awaiting completion of his 
appellate review.

       b.  In regards to the applicant's request for a personal appearance, Army 
Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the 
Board; however, the request for a hearing may be authorized by a panel of the Board or 
by the Director of ABCMR.
       c.  In regards to his contentions:

            (1)  He was told by his recruiter to lie about graduating from high school and not 
to mention he was in a drug treatment program, and that he was to enlist at the grade of 
E-7.  The record does show the applicant submitted a DA Form 1966 in which he 
indicated that he graduated high school.  His enlisted qualification brief shows he 
completed high school in 1971, prior to his enlistment.  However, while going through 
the court-martial process, the applicant admitted, through his defense counsel; he 
lacked a few credits towards his high school diploma upon entry onto active duty in the 
Army, but obtained his diploma by taking courses at Saint Mary?s high school while at 
Fort Carson.  The available record is void of any documentation regarding the applicant 
being enrolled in a drug treatment program prior to his enlistment.  We are unable to 
determine what transpired between the applicant and the recruiter at the time of his 
enlistment and the applicant did not provide any documentation to support his 
contentions.

            (2)  He was to enlist at the grade of E-7.  His enlistment contract states he 
enlisted as a PVT/E-1 and it was endorsed by the applicant.  He acknowledged that 
there were no other promises made by him other than his school of choice and 
assignments mentioned on the contract.

            (3)  After his drug treatment program, he received orders for assignment at Fort 
Carson, CO, with instructions for him to return in 30 days for reevaluation.  The orders 
are void of any mention of returning to Fitzsimons Army Hospital for a reevaluation; 
however, his physical profile does show he was instructed to return to a hospital for 
revaluation, but did not name a specific hospital.

            (4)  While he was at Fort Carson, CO, Soldiers physically attacked him and a 
squad leader from another squad sexually confronted him on two occasions.  The 
record is void of any investigations or medical documentation to support this contention 
nor was any documentation provided by the applicant.

            (5)   He was tried by general court-martial but he should have been tried by a 
special court-martial.  The record is void of any documents to show his case was 
referred to a special court-martial.  

            (6)  His general court-martial had several inconsistencies to include stating that 
he served in Vietnam and he has the documents to prove it.  His enlisted qualification 
record does show he was awarded the Vietnam Service Medal and Vietnam Campaign 
Medal, which may have been authorized if he had served in Vietnam.  According to his 
record, it is clear that the applicant did not serve in Vietnam.  The record of trial is 
unavailable for review and the applicant did not provide any documentation to support 
his contention.  

            (7)  After trial he should have been assigned to the USARB for two years in 
order to receive an honorable discharge but after briefly being at the Retraining Brigade, 
he was reassigned to confinement at Fort Leavenworth, KS.  The record shows the 
Military Judge did recommend that the convening authority consider suspending the 
applicant’s bad conduct discharge and reassigning him to the Retraining Brigade, Fort 
Riley, KS.  The convening authority approved the sentence as adjudged and forwarded 
to case for appellate review.  Fort Carson, CO, inadvertently assigned him to the 
Retraining Brigade but he was reassigned to the USDB, Fort Leavenworth, KS, once 
the mistake was discovered.  While assigned to the USDB, as a part of his clemency, 
the applicant was provided the opportunity for restoration consideration, subject to a 
period of retraining, but he declined.  The USACMR affirmed the bad conduct 
discharge.  

            (8)  His mental health, i.e., mental instability, a review of the available evidence 
provides:

                  (a)  The applicant was on leave from Germany when he sought help for his 
drug problem from the Veteran?s Administration Center in Minneapolis.  He was there 
for seven weeks and was transferred to Fitzsimons, in Denver, CO where he was 
treated for another seven weeks for a drug related problem.  After treatment, he was 
assigned to Fort Carson, CO. 

                  (b)  During his court-martial proceedings, he received a psychiatric 
evaluation and the Chief of the Department of Psychiatry, Fort Carson, CO, determined 
he was mentally responsible at the time of the alleged acts, was mentally competent to 
stand trial and assist in his own defense, and had no psychiatric disease at the time of 
the examination.

                   (c)  The Office of the Undersecretary of Defense for Personnel and 
Readiness provides guidance that 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 mental health conditions, Traumatic Brain Injury (TBI), post - traumatic stress 
disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, 
oral or written, may establish the existence of a condition or experience, that the 
condition or experience existed during or was aggravated by military service, and that 
the condition or experience excuses or mitigates the discharge.

            (9)  His drug and alcohol usage/abuse.  At the time of his service, there were no 
explicit policies or procedures defining alcohol and drug abuse in the military. DOD 
recognized significant service member drug abuse/usage for military members abroad 
in 1961; however, it was not until over a decade later that President Nixon directed the 
military drug urinalysis program.  Although In 1972, Public Law established an 
identification and treatment program known as the DoD Amnesty Program, which 
reported over 16,000 military members who admitted to a drug abuse, it was not until 
January 1974 when the Army formally published governing policy and procedures.  

       d.  AR 635-200 (Personnel Separations – Enlisted Personnel) states 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.  Paragraph 11 states an enlisted 
person will be given a bad conduct discharge pursuant only to an approved sentence of 
a general or a special court-martial, after completion of appellate review and after such 
affirmed sentence has been ordered executed.  

       e.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  The Board is not empowered to set aside a conviction but is 
empowered to change the severity of the sentence imposed in the court-martial process 
and then only if clemency is determined to be appropriate.  

27.  The applicant requests an upgrade so that he may receive benefits.  The ABCMR is 
not authorized to grant requests for upgrade of discharges solely for the purpose of 
making the applicant eligible for veterans' benefits; however, in reaching its 
determination, the Board can consider the applicant's petition and his service record in 
light of the published DOD guidance on equity, injustice, or clemency.

28.  Based on the applicant's reference to a medical condition(s) being the basis of his 
separation, the Army Review Board Agency medical staff provided a medical review for 
the Board members.  See the "MEDICAL REVIEW" section."

MEDICAL REVIEW:

The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s military records.  The Armed Forces Health Longitudinal 
Technology Application (AHLTA) & Health Artifacts Image Management Solutions 
(HAIMS) was not in use at the time of his service.  A review of the applicant’s service 
record indicates the applicant was placed on a temporary profile due to his significant 
drug use with a recommendation to be assigned CONUS on 23 Feb 1973.  He was 
found medically qualified for military duty.  The review of his court martial document 
indicates the court martial judge directed a psychiatric evaluation and the psychiatrist 
determined he was mentally responsible at the time of the alleged acts and had no 
psychiatric disease at the time of the examination.  The report indicates he was treated 
for substance abuse in a VA facility for 7 weeks and another 7 weeks at the Ft Carson 
Army hospital.  A review of VA’s Joint Legacy Viewer (JLV) indicates he was initially 
seen in the emergency room (ER) on 23 Jul 2012 and again in the ER on 10 Dec 2012.  
He was diagnosed with Anxiety Disorder, Not otherwise specified (NOS). Provider note 
from 22 Jan 2013 indicates the applicant reported significant child abuse and a history 
of PTSD, Bipolar, and Substance Abuse diagnoses.  On 19 Sept 2019, a Compensation 
and Pension Examination was conducted via records review due to the applicant and 
his representative raising the issue of insanity at the time of the court martial offenses 
that resulted in his discharge.  The psychologist opined “he found no evidence of 
insanity during military service”, had “no psychiatric diagnosis other than drug 
dependence”, and “did not have any disease which caused a more or less prolonged 
deviation from his normal method of behavior other than what was deemed then as drug 
dependence and now what would be deemed substance use disorder.”  In addition, this 
report was reviewed and the findings confirmed on 30 Apr 2020.  He does not have a 
service connected disability rating.  In accordance with the 3 Sep 2014 Secretary of 
Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance 
there is no documentation to support a behavioral health condition at the time of his 
discharge other than substance abuse disorder.  He did not have a medically boardable 
condition at the time of his discharge.  There is no documented behavioral health 
diagnosis to consider with respect to mitigation of his misconduct.  

BOARD DISCUSSION:


In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance 
Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to 
support a behavioral health condition at the time of his discharge other than substance 
abuse disorder.  He did not have a medically boardable condition at the time of his 
discharge.  There is no documented behavioral health diagnosis to consider with 
respect to mitigation of his misconduct.  

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  

1.  The board applied Office of the Secretary of Defense standards of liberal 
consideration and clemency to the complete evidentiary record, including the applicant’s 
statement and found insufficient evidence of error, injustice, or inequity.  Regarding 
Secretary of Defense standards of liberal consideration, the Board agreed with the 
ARBA Medical Advisor that there is no documented behavioral health diagnosis to 
consider with respect to mitigation of his misconduct.  Furthermore, although the Board 
applied Secretary of Defense standards of clemency; the applicant’s record shows he 
had limited honorable service, no meritorious personal awards or wartime service and 
insufficient evidence of mitigating circumstances for the serious misconduct.  The Board 
agreed that the applicant’s discharge characterization is appropriate.

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.




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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR has the discretion to hold a hearing; applicants do not have a right to 
appear personally before the Board.  The Director or the ABCMR may grant formal 
hearings whenever justice requires.
3.  Alcohol and Drug Abuse. In 1961 the Under Secretary of Defense, Personnel and 
Readiness identified significant service member drug abuse/usage for military members 
abroad. In June 1971, over a decade later, President Nixon addressed the Nation about 
young American becoming addicts while serving aboard (Vietnam, Europe, etc.). He 
directed the military drug urinalysis program, prioritizing identification and treatment of 
members prior to returning from Vietnam. In 1972, Public Law established an 
identification and treatment program known as the DoD Amnesty Program reported over 
16,000 military members who admitted to a drug abuse problem. However, it was not 
until January 1974 when the Army formally published governing policy and procedures. 

     a.  While the services determined how to implement they were faced with a multitude 
of challenges due to the lack of defined administrative procedures to address 
circumstances such as identifying if rehabilitative efforts occurred, drug usage and/or 
possession was a result of self-reporting or a direct or indirect result of a urinalysis, 
which resulted in inequitable and unjust action. In 1973, the Deputy, Secretary of 
Defense clarified his guidance further in an official memorandum that was later codified 
in the Code of Federal Regulations to address unjust disciplinary action, to include 
those members separated with punitive discharges and dismissal resulting from 
approved courts-martials issued solely for personal drug use and or possession of 
drugs prior to 1 July 1971. Five years later policy was updated to extend that period of 
consideration to 1 January 1975. 

     b.  In 1980, as the understanding of drug abuse in the military services continued to 
evolve, it was reported that alcoholism was the most dangerous and leading factor of 
drug abuse over heroin and marijuana. In 1981, the Secretary of Defense made a 
significant change in Department posture shifting from identification and treatment to 
identification, rehabilitation, and retention. Throughout the 1980's, the services 
continued to refine and establish administrative requirements, to include identify blood 
alcohol level standards, revision and updates of the Alcohol and Drug Abuse Prevention 
Control Program, while also aligning Army Regulation 600-85 with other policies and 
regulations involving retention criteria and personnel administrative processes as it 
pertains to alcohol and drug abusers.

4.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set 
forth the basic authority for the separation of enlisted personnel.  It states 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:

     a.  An honorable discharge is a separation with honor.  The honorable 
characterization will be conditioned upon proper military behavior and proficient 
performance of duty during the member’s current enlistment or current period of service 
with due consideration for the member’s age, length of service, grade, and general 
aptitude. 

     b.  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 11 (Dishonorable and Bad Conduct Discharge) outlined the steps to be 
taken for the separation of Soldiers who had been convicted by courts-martial and for 
whom the punishment included a punitive discharge.  It states an enlisted person will be 
discharged with a bad conduct discharge pursuant only to an approved sentence of a 
general or special court-martial, following the completion of an appellate review, and 
after such affirmed sentence had been ordered duly executed.

5.  Title 10, section 1552 provides court-martial convictions stand as adjudged or 
modified by appeal through the judicial process.  In accordance with Title 10, U.S. 
Code, section 1552, the authority under which this Board acts, the Army Board for 
Correction of Military Records is not empowered to set aside a conviction.  Rather it is 
only empowered to change the severity of the sentence imposed in the court-martial 
process and then only if clemency is determined to be appropriate.  Clemency is an act 
of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

6.  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.  Standards for review 
should rightly consider the unique nature of these cases and afford each veteran a 
reasonable opportunity for relief even if the sexual assault or sexual harassment was 
unreported, or the mental health condition was not diagnosed until years later.  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.

7.  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)	 AR20190002484

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190002484


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ABCMR Record of Proceedings (cont)	AR20190002484


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