ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 12 March 2021 DOCKET NUMBER:  AR20200003334 
APPLICANT REQUESTS: . upgrade of his general discharge under honorable conditions . 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 . Department of Veterans Affairs (VA) Mental Disorders (other than post-traumatic 
stress disorder (PTSD) and Eating Disorders) – Disability Benefits Questionnaire . psychologist’s report 
FACTS: 
1. 
The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: 


a. 
He requests upgrade of his discharge to honorable.  He believes his alcohol use and eventual rehabilitation failure was due to military trauma stressors and eventual diagnosis of other specified trauma and stressor related disorder with generalized anxiety disorder incurred during combat. Please see the medical report from Dr. V_____. 

b. 
He had not abused alcohol before joining the Army and after he joined he didn’t start abusing alcohol until after he returned from combat in the Persian Gulf War.  He didn’t have any write-ups or problems with authority prior to returning from combat. In fact, it was quite the opposite.  Their platoon was top-ranked and he was even promoted. 

c. 
Looking back, he sees now that those events in combat changed him more than he realized.  He was grateful to be back in Germany after months in the deserts of Saudi Arabia and Iraq, but the nightmares and the ringing in his ears was a constant reminder of the death and his multiple near-death experiences.  He was using alcohol to numb his anxiety and deal with the stress that it caused him.  He was a good Soldier, but he started drinking a lot after coming back from the Gulf War.  His decisions started getting worse as he drank to cope with the trauma of combat and death. 

d. 
Poor decisions and booze landed him in a German jail for driving under the influence (DUI) and he was demoted.  Some months after returning from Iraq and Saudi Arabia, he made another rash decision in his search for something to help him with his depression and anxiety. He married a German girl after knowing her for only 6 weeks. They eloped in Denmark and the marriage ended in divorce due to his anxiety and depression.  He now knows he was trying to escape his guilt, fear of death, and anxiety. He wishes he could have gotten help back then.  He thinks his life would be so much closer to normal. 


3. 
The applicant enlisted in the Regular Army on 24 July 1990. 

4. 
His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was stationed in Germany from 16 January 1990 through 9 November 1992.  From Germany, he deployed to Saudi Arabia for 3 months, from 1 January 1991 through 2 April 1991. 

5. 
A German police report from the Konstanz Police Station, dated 10 April 1992, 


shows the applicant’s driver’s license was confiscated on the date of the report at 0145 
hours after he was determined by blood alcohol test to have been driving while intoxicated. 
6. 
A Military Police Report, dated 14 April 1992, shows the applicant was charged with drunken driving and was advised of his rights. 

7. 
A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) shows the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on 29 April 1992 for operating a passenger car while drunk on 10 April 1992.  The following punishment was imposed: 

. reduction to the rank/grade of private/E-2 . forfeiture of $440.00 pay per month for 2 months . extra duty and restriction for 45 days 

8. 
A memorandum, dated 9 July 1992 and signed by the applicant, his counselor, and his commander, shows the applicant was enrolled in an outpatient assessment and intervention group and would participate in the assessment group as indicated in the 

group appointments schedule. The assessment group was structured, time limited, and consistent in procedures. It was critical that each group appointment was kept. The applicant was enrolled in 6 assessment groups between 13 July 1992 and 24 July 1992, and both abstinence and participation were mandatory. 

9. 
The applicant made a permanent change of station move to Fort Sill, OK on 14 December 1992 and was promoted to the rank/grade of specialist/E-4 on 1 February 1993. 

10. 
A Headquarters, U.S. Army Field Artillery Center and Fort Sill memorandum, signed by the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Clinical Director, dated 6 April 1993, shows: 


a. 
The applicant was a self-referral to the Fort Sill ADAPCP on 26 March 1993.  He was screened and enrolled in an outpatient counseling program. 

b. 
The applicant attended three individual counseling sessions and declared himself successfully rehabilitated, thereby refusing to attend any more counseling sessions.  As a result, his company commander concurred with the ADAPCP that the applicant was declared a rehabilitative failure in accordance with Army Regulation 600-85 (The Army Substance Abuse Program).  The applicant was cleared for any administrative action necessary. 


11. A DA Form 3822-R (Report of Mental Status Evaluation), dated 15 April 1993, shows 
a. 
The applicant underwent a mental status evaluation on the date of the form for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9. 

b. 
The applicant was found to have the mental capacity to understand and participate in the proceedings.  He met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) and he did not have a psychiatric disease or defect which warranted disposition through medical channels. The applicant was psychiatrically cleared for any administrative or judicial action deemed appropriate. 


12. 
A Standard Form 93 (Report of Medical History), dated 22 April 1993, shows the applicant indicated he was in good health and did not take any medication.  He also indicated he had depression due to alcoholism. 

13. 
A Standard Form 88 (Report of Medical Examination) shows the applicant underwent medical examination on 22 April 1993 and was found to be healthy with no 

recommendation for further specialist examinations.  He was given a physical profile rating of “1” in all categories and deemed qualified for separation. 

14. 
On 12 May 1993, the applicant was notified by his immediate commander of his initiation of action to separate him under the provisions of Army Regulation 635-200, chapter 9, for alcohol or other drug abuse rehabilitation failure.  His immediate commander recommended the applicant receive an honorable discharge, but the applicant was advised the intermediate commander and separation authority were not bound by the recommendation.  The applicant was advised of his rights, including the right to consult with counsel and provided statements in his behalf. 

15. 
On 12 May 1993, the applicant acknowledged receipt of notification to discharge him under the provisions of Army Regulation 635-200, chapter 9. On 17 May 1993, the applicant acknowledged being afforded the opportunity to consult with appointed counsel and accepted the opportunity. He acknowledged being advised of the basis for the contemplated action to separate him for alcohol or other drug abuse rehabilitation failure and the right available to him. He did not submit statements in his behalf and understood he may expect to encounter substantial prejudice in civilian life if a less than an honorable discharge were issued to him. 

16. 
On 24 May 1993, the approval authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 9, for alcohol or drug rehabilitation failure, with a general characterization of service. 

17. 
The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 28 May 1993 he was given a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 9, for alcohol abuse – rehabilitation failure, after 2 years, 10 months, and 5 days of net active service. 

18. 
The applicant provided a VA Mental Disorders (other than post-traumatic stress disorder (PTSD) and Eating Disorders) – Disability Benefits Questionnaire, dated 4 December 2019 and signed by a psychiatrist, Dr. V____. It shows the applicant was diagnosed with other specified trauma and stressor related disorder as well as generalized anxiety disorder. The applicant’s generalized anxiety disorder and other specified trauma and stressor related disorder co-mingle and affect each other, both negatively affecting his social and occupational functioning. 

19. 
Provided in conjunction with VA Disability Benefits Questionnaire is a 27-page report authored by Dr. V____, likewise dated 4 December 2019, which has been provided in full for the Board’s review.  Dr. V_____ states in the report, in pertinent part: 


a. The applicant is under-rated (presumably by the VA) for his other specified trauma and stressor related disorder with generalized anxiety disorder at 30 percent. His noted symptoms fit the 70 percent disability rating, but he was only rated at 30 percent, which is a clinical error. 
b. The applicant has also been diagnosed with sleep apnea. With research and studies linking sleep apnea to trauma and with the VA cases granting service-connection for sleep apnea with post-traumatic stress disorder (PTSD)/trauma and depression, the applicant’s sleep apnea should be service-connected and secondary to his other specified trauma and stressor related disorder with generalized anxiety disorder. The applicant’s sleep apnea is at least as likely as not incurred in or caused by or aggravated by his service-connected other specified trauma and stressor related disorder with generalized anxiety disorder, thus making his sleep apnea service-connected. 
c. 
Due to the applicant’s trauma stressors while in the military, he believes his alcohol use and abuse was due to his military trauma stressors and eventual diagnosis of other specified trauma and stressor related disorder with generalized anxiety disorder. It was his clinical opinion that the applicant should have his discharge reviewed and upgraded to honorable discharge to allow for full military benefits to be awarded. 

d. 
The applicant’s current VA ratings are 10 percent for tinnitus and 30 percent for other specified trauma and stressor related disorder with generalized anxiety disorder, per a VA Rating Decision dated 3 September 2019. The applicant’s service treatment records show complaints of depression and his current symptoms of depressed mood, disturbing dreams, difficulty coping, and tearfulness still occur today. The applicant endorsed struggling with fatigue and sleep disturbance problems from the last year of his active duty service in 1992 through today.  He gained weight since leaving the military and became obese, eating to comfort his anxiety as well as self-medicating with alcohol to relieve the panic attacks and anxiety. 


20. Based on the applicant’s condition 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 reviewed the supporting documents and the applicant’s medical records in the VA Joint Legacy Viewer (JLV) and made the following findings and recommendations. The applicant is service connected for Generalized Anxiety 
Disorder (GAD), not PTSD.  Moreover, the applicant’s rehabilitative failure discharge is 
not based on ongoing substance use, rather, choosing to remove himself from treatment. Given the service connection is not for PTSD and separation was based on refusal versus ongoing substance issues, from a behavioral health standpoint there is no mitigation. 
2. 
The case file contains a June 1992 treatment note indicating the applicant was assigned to group treatment. An April 1993 memo indicated the applicant refused to attend substance treatment, and “declared himself successfully rehabilitated.” The applicant was recommended for a rehabilitation failure discharge. In April 1993, the applicant had a Mental Status Exam (MSE) clearing the applicant without a diagnosis. In the exit physical, the applicant reported depression related to alcohol use. 

3. 
The applicant is 70% service connected for Neurosis and Generalized Anxiety Disorder (GAD). In February 2014, the applicant went to behavioral health reporting anxiety and irritability which had worsened over the prior two years related to learning of his mother’s drug abuse.  He was diagnosed with Anxiety Disorder Unspecified and Major Depressive Disorder (MDD). A January 2015 screening lists PTSD; however, documentation is void of substantiation.  A follow up psychiatric visit diagnosed Depressive Disorder Unspecified. The applicant continued with psychiatry with an updated diagnosis of GAD in August 2016. In September 2019, PTSD was added; however, the provider noted full criteria were not met. In March 2020, MDD was added. 

4. 
The applicant submitted a 2019 evaluation which indicated a diagnosis of Other Specified Trauma and Stressor Related Disorder with GAD.  The provider opined military stressors led to his alcohol use and discharge. The evaluation report references a VA Compensation and Pension (C&P) exam which is unavailable to this provider. However, the provider was challenging the rating rather than the service connection under GAD. 


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 applicant's request for a personal appearance hearing was carefully considered; the evidence of record was sufficient to render a fair and equitable decision and a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's behavioral health claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient in-service evidence to determine his rehabilitation failure was mitigated by a behavioral health condition; the Board found no post-service evidence to support clemency.  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 
:XX :XX :XX 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. 
X 
CHAIRPERSON 
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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 

2. 
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 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.  This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 

3. 
Army Regulation 600-85 (The Army Substance Abuse Program) in effect at the time, prescribed treatment policies and goals to restore individuals to full and effective functioning on duty. Rehabilitation is considered a failure if the Soldier is unable to remain free from the abuse of alcohol or other drugs. This regulation also directs that when a commander, in consultation with the rehabilitation team, declares a service member a rehabilitation failure, the individual will be processed for separation from the service under the provisions of Army Regulation 635-100 (Personnel Separations ­Officer Personnel) or Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 

4. 
Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), provides policy guidance on enlisted administrative separations.  Chapter 9 pertains to alcohol or other drug abuse rehabilitation failures.  It states a member who is enrolled in the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program.  The service of members discharged under his section will be characterized as honorable or under honorable conditions. 

5. 
Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 


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