IN THE CASE OF: BOARD DATE: 3 September 2020 DOCKET NUMBER: AR20190014653 APPLICANT REQUESTS: The applicant requests an upgrade of his bad conduct discharge to the “next higher level”. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Army Discharge Review Board internet instructions * Permission letter for Mr. M to speak on the applicant’s behalf * Privacy Release Consent form for U.S. Representative * General Authorization for Use or Disclosure of Health Information * Request Pertaining to Military Records * Congressional correspondence * National Personnel Records Center letter to the Honorable * Law Veterans Legal Clinic University of information letter 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, in effect: a. He believes the record to be unjust because there is nothing in his records to suggest that he was ever offered treatment for what was plainly his addiction to alcohol and marijuana, as he has informed the individual that helped him submit his application to the Board. Mr. M, who is a retired addictions therapist, can attest that treatment for the addiction and its addictive behavior to be absolutely vitally necessary to the recovery of the addicted individual. b. He should be granted clemency and he currently suffers from a traumatic brain injury and he is remorseful for his missteps while in the Army. An assortment of Army narrative documents from the applicants record purport to be evidence on behalf of his long-going alcoholic-caused Uniform Code of Military Justice (UCMJ) infractions. He requests an upgrade of his bad conduct discharge based on the fact that he has now been discharged for more than 35 years. He asks for clemency in accordance with the Army Discharge Review Board mission statement. c. Mr. M, LBSW, MA states as a non-combatant U.S. Navy veteran of sea duty aboard the USS Wilkinson (DL-5) off the coast of Vietnam (1960-62) and a retired social worker in the cities of Detroit, Michigan, and Gainesville, Florida, working as a substance abuse therapist for approximately ten years (1969-79), it is his belief, based on his formal training and experience and on authorized entries in the applicant’s service records pertaining to the UCMJ charges and specifications brought against him, that it is extremely likely that the applicant became addicted to alcohol and also marijuana perhaps during his earlier enlistment. d. This later marijuana issue was communicated to Mr. M personally by the applicant. The applicant's claim of injustice is founded upon the fact that he was never offered treatment for his nascent alcohol-marijuana cross-addiction, and that the absence of treatment, crucial to recovery from any addictive substance or behavior, e.g., gambling, sexual addiction, etc., constitutes an injustice not only to the applicant but towards all other service members similarly afflicted. Other drug users diagnosed as “drug abusers” (not addicted) can quit using the drug if certain conditions apply, such as, the “user” brings upon his/herself, such conditions as loss of job, health issues, loss of family, police and other legal problems. The drug “users” can stop their use, as mentioned, if their using creates large life problems, but not the addict. He/she can stop only with the condition of treatment, whether through organization such as “AA” or professional treatment. e. In closing, Mr. M respectfully directs the Board’s attention to the fact that in all of his UCMJ charges and specifications, drinking was involved without question or very strongly implied. He could not find a single report of the applicant having been offered treatment for addiction, this in view of what appears to have been a rather good record of service, to wit: the Army Service Ribbon, Overseas Service Ribbon, and Rifle M-16 Marksman Qualification Badge. Mr. M closed by posing the question whether the extremely worthwhile costs of addiction treatment, both to the individual Soldier and to the Army would not be well-worth the investment to all of our country's Armed Services? 3. On 12 February 1981, at the age of 19 years old, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded a military occupational specialty. 4. In June 1981, his Personnel Qualification Record shows he was assigned to Fort Richardson, Alaska. He obtained the pay grade of E-2 on 12 August 1981. 5. On 4 September 1981, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty. 6. On 3 November 1981, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for: * absenting himself from his unit from on or about 0630 hours, 1 October 1981 to 0330 hours, 2 October 1981 * disobeying a lawful order on two occasions * failing to be at his appointed place of duty 7. On 7 December 1981, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being derelict in the performance of his duties. 8. On 11 February 1982, a final Criminal Investigation Division Report of Investigation disclosed that the applicant stole $313.20 worth of miscellaneous TA-50 gear; one M17A1 gas mask, valued at $98.00, all property of the U.S. Government and Specialist D, and one Vivitar 110 Instamatic camera, valued at $24.00, property of Specialist D. The applicant gave the stolen TA-50 gear and gas mask to Private D, who was told the applicant had taken it from an unsecured wall locker. The TA-50 gear and gas mask were recovered. 9. On 25 March 1982, he was arraigned, tried, and convicted by a special court-martial empowered to adjudge a bad conduct discharge. A special court-martial convicted the applicant of Uniform Code of Military Justice violations. The applicant was found guilty of: * stealing items of TA-50, valued at more than $100.00 dollars * stealing a “Vivitar” 110 Instamatic camera valued at some amount not in excess of $50.00 dollars * being disrespectful in language to his superior noncommissioned officer * willfully disobeying a lawful command from his superior commissioned officer * unlawfully striking Private W, in the face with a closed fist 10. A military judge sentenced him to confinement at hard labor for 3 months, forfeiture of $350.00 pay, per month for 6 months, and to be discharged from the Army with a bad conduct discharge. 11. Personnel Action forms contained in the applicant’s record show he was absent without leave (AWOL) from on or about 22 to 25 June 1982. 12. On 9 July 1982, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for: * being AWOL from on or about 22 to 25 June 1982 * willfully disobeying a lawful order * breaking restriction * failing to be at his appointed place of duty 13. On 27 July 1982, the applicant’s sentence was approved. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. The portion of the punishment pertaining to confinement at hard labor had been served. The applicant was placed on involuntary excess leave pending completion of appellate review of his case. 14. On 23 March 1983, Headquarters, 172d Infantry Brigade (Alaska), Special Court- Martial Order Number 16 announced the completion of the applicant’s appellate review process and directed the execution of his bad conduct discharge. 15. On 2 February 1984, the applicant was separated with a bad conduct discharge. His DD Form 214 shows he completed 2 years, 11 months, and 18 days of net active service with lost time from 22 to 24 June 1982. The applicant was not awarded a personal decoration. His DD Form 214 also shows in: * item 24 (character of service) – Bad Conduct Discharge * item 25 (separation authority – Army Regulation 635-200, Chapter 14 * item 26 (separation code) – JKM * item 27 (reenlistment code) – RE-4 * item 28 (narrative reason for separation) – Misconduct – Pattern of Misconduct 16. In support of his case, the applicant provides numerous supporting documents listed above in the record of proceedings. In pertinent part, the documents state he: * occasionally drank alcohol heavily * he broke his jaw and appeared to be under the influence of alcohol at the time * vomited during one episode of drinking and missed formation * assaulted another Soldier * listed and identified multiple drug and alcohol incidents and offenses on his enlistment documents * gave permission to Mr. M to speak on his behalf to the Board and to his Congressional representative 17. The applicant contends he was not offered treatment for his alcohol and marijuana addictions; however, there is no evidence in his record of self-referral or him stating that he had an addiction to drugs and alcohol. 18. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation provides that a Soldier was given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 19. 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 only empowered to change the severity of the sentence imposed in the court-martial process. 20. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 21. Based on the applicant's record the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation. 2. The supporting documentation shows the applicant had an arrest for being a minor in possession of an intoxicant in 1979. The applicant had multiple Article 15’s and was eventually referred to a Special Court-Martial. Violations included stealing another Soldier’s TA-50, stealing another Soldier’s camera, failures to obey lawful orders, and assault of a fellow Soldier. Only the last violation appears to have been related to alcohol use. 3. Witness statements reveal the applicant had gone to bed drunk and was difficult to wake the following morning by two noncommissioned officers and a lieutenant. Once awake, “Private [applicant] walked out of his room and went straight across the hall and hit Private W in the face, and W’s head hit the wall and he fell to the floor unconscious.” While there is no evidence the applicant had been diagnosed with alcohol dependence, it is certainly a possibility the applicant had this condition. However, this condition would in no way mitigate the two acts of larceny nor the unprovoked attack on a fellow Soldier. 4. No evidence of a significant mental health condition was identified. It is the opinion of the ARBA Medical Advisor that there is no mental health condition which would mitigate the actions which led to the applicant’s bad conduct discharge. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim regarding alcohol and marijuana addiction and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by any medical conditions. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation states: a. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. An under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier. c. A Soldier was given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 3. 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. a. 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014653 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1