IN THE CASE OF: BOARD DATE: 9 March 2022 DOCKET NUMBER: AR20210010060 APPLICANT REQUESTS: The applicant requests the upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two letters of support * Department of Veterans Affairs (VA) Rating Decision * VA letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 he is 100 percent disabled due to post-traumatic stress disorder (PTSD), with severe depression; he incurred PTSD after suffering military sexual trauma (MST). The applicant notes he finally got the help he needed from the VA, and he offers additional details in two self-authored statements: a. In his first statement, the applicant writes that he wants the Board to know what his life is like. (1) While the applicant was on active duty, a person in charge brutally raped him, and because of the trauma he incurred, the applicant became a heroin addict and heavy drinker; the Army ultimately discharged him for drug abuse. For 30 years thereafter, the applicant suffered in silence, as he did not know how to handle what had happened; he spent a good many years in and out of rehabilitation programs and in trouble with the law. (2) The applicant affirms his life is much better now; he receives help from a Veterans' Center, and the VA has awarded him a 70 percent disability rating for MST-related PTSD and severe depression. Nonetheless, it has not been easy, and he struggles every day with feelings of being "less than a man and not wanting to live." He finds it difficult to hold a job and to make friends, and his relationship with his wife "is a mess." He is still scared when he gets up each morning, and his nightmares keep him up at night because he revisits his rapes; he often wakes up screaming. He wonders daily whether today is the day he can no longer take it and will commit suicide. Many weeks, his depression is so bad he does not shower or take care of himself, and he is afraid to leave his house for fear of what he may do. He adds there are many days he does not eat and he just remains curled up in a ball. (3) The applicant acknowledges drugs are not the answer, but they have helped him forget his pain. He states he does not know how to have a relationship with his son; the applicant has been an addict his son's entire life. The applicant also declares he has not been a father to his son, nor a husband to his wife; the applicant remains riddled with shame, embarrassment, and guilt. He contends his assailant took his life from him, and the applicant does not know how to get it back; the applicant sometimes thinks it would just be easier to leave this world. Because of MST, the applicant is now a "shell of a man, and I am broken"; he rhetorically asks, "Who knows what my life could have been? I guess we will never know." b. In the applicant's second statement, he offers details of the trauma he suffered while on active duty. (1) The applicant states he joined the Army in July 1984 and went to Fort Jackson, SC for basic combat training (BCT). Upon BCT graduation, he transferred to Fort Sam Houston, TX for advanced individual training and, ultimately, assignment orders sent him to Fort Irwin, CA for duty; he arrived at Fort Irwin in or around March 1985. (2) The applicant achieved the rank/grade of specialist four (SP4)/E-4, and he was in charge of his unit at Fort Irwin's military hospital. The applicant initially met First Sergeant (1SG) S__ through work, and, occasionally, the applicant and 1SG S__ would link up with other Soldiers at the Enlisted Man's Club. Around April or May, the 1SG invited the applicant to go to Las Vegas, NV in the 1SG's personal vehicle; on the way back from Las Vegas, the 1SG pulled the car off the road, pretending something was wrong with his vehicle. Both the applicant and the 1SG got out of the car, checked the vehicle, and, finding nothing amiss, got back in the car; once in the car, the 1SG began rubbing the applicant's genitals. The applicant was shocked and frightened, as he had never encountered anything like this before. The applicant began to fight the touching, but the 1SG told him to stop, telling him, if the applicant looked out into the desert, all he would see was nothing. "He told me that is exactly where I could end up, if I continued to fight. I could be buried out there, and no one would even know." (3) The 1SG unzipped his pants and forced the applicant to perform oral sex, all the while telling the applicant not to fight his actions. After the 1SG finished, he said, if the applicant ever spoke of this to anyone, the applicant would end up lost in the desert; the applicant clearly understood and believed the 1SG was threatening to kill him. The 1SG and the applicant continued back to Fort Irwin and, upon reaching the applicant's barracks, the 1SG told the applicant to get out of his vehicle; the applicant ran from the 1SG's car and went straight to his bunk, feeling nauseous and sick, and in disbelief that someone, especially a 1SG, could do something like this. Of course, the applicant affirms, he was too ashamed and scared to report the incident; in any case, no one would have taken the word of an E-4 over a 1SG. (4) Later in May 1985, the 1SG came to the applicant's place of duty; he handed the applicant a piece of paper and told the applicant to go to the address listed on the paper after work. The 1SG reminded the applicant of what he (the 1SG) had said earlier, and the applicant understood that comment to mean, if he failed to comply with the 1SG's instructions, the applicant would end up dead in the desert. For the remainder of the day, the applicant was very distraught, but he knew he could neither tell anyone nor report anything. The applicant obeyed the order and went to the address with the intention of conveying to the 1SG that he would not allow the 1SG's prior behavior. Following his arrival, the applicant and the 1SG were in the kitchen when the 1SG put his hand on the applicant's shoulder; the applicant told the 1SG that, although he would not report the 1SG, the applicant did not want a repeat of what had occurred in the desert. The 1SG became very angry, and he kicked the applicant so hard in the knee that the applicant fell to the ground; the 1SG went to another room and returned with a gun, saying, "Is this what you want?" The applicant feared for his life, and he begged the 1SG not to kill him. (5) The applicant states the 1SG then gave him a large mug of what smelled like alcohol and told the applicant to drink it quickly; looking at the gun on the table, the applicant followed the instructions. The 1SG put on some music, directed the applicant to remove his pants, and the 1SG proceeded to rub the applicant; the 1SG then demanded oral sex. The applicant goes on to describe, in graphic detail, the 1SG's sexual assault of the applicant. After the assault, the 1SG ordered the applicant to get dressed; he laughed, saying, "Now I really got you because in your drink was acid (LSD (Lysergic Acid Diethylamide))." The 1SG went on to state, he had friends among the military police and, if the applicant said anything, the 1SG would tell them the applicant had used drugs; the Army would throw the applicant in jail and court-martial him. The 1SG "kicked me out of his house and said, 'I'll see you real soon'"; the applicant returned to his barracks sore, ashamed, and scared. The next day (13 May 1985), the applicant woke up to find his knee had swollen so badly, he could not walk; he got a ride to the hospital and, when the doctor asked how he had injured his knee, the applicant told the doctor he had hurt himself playing softball. The doctors x-rayed his knee, wrapped it, and released the applicant; (the applicant indicates his military medical records will show this hospital visit). (6) Between May 1985 and February 1986, the 1SG raped the applicant repeatedly; the 1SG would show up at the applicant's workplace and demand the applicant come to his house. These incidents increased in number and brutality and worsened the applicant's trauma. In July 1985, the applicant became so distraught he turned to drugs and alcohol for relief; he discloses that, during high school, a classmate had given him cocaine once or twice, but, other than that, he had never used any drugs. Now, due to the abuse, the applicant began asking around for cocaine, and he found a Soldier willing to sell him crack cocaine; the cocaine offered the applicant the relief he sought, and, coupled with alcohol, the applicant started using cocaine daily. (7) The applicant describes an incident in September 1985; the 1SG called the applicant to his house and, once there, the applicant first drank heavily, then the 1SG both sexually assaulted the applicant and choked the applicant until he passed out. Once the applicant regained consciousness, he saw the 1SG standing over him laughing, and he instructed the applicant to get on the couch. The 1SG proceeded to arouse the applicant and then burned the applicant's private parts with a lighter; the 1SG continued the abuse by stepping on the applicant's private parts until the applicant screamed. The 1SG then directed the applicant to drink a glass of hard liquor, get dressed, and leave. Later that night, the applicant hoped he would not wake up, but he did; he felt excruciating pain in his lower back, so he got a ride to the hospital, where he told the doctors he had hurt his back playing racquetball. The doctors told him he had pulled his lower lumbar region, and they released him. The next day, a burn blister on the applicant's private parts broke open, and he had blood in his underwear; this was the first time the applicant considered committing suicide. (8) In October 1985, the 1SG summoned the applicant to his house once again; this time, another naked man appeared and, when the applicant tried to run, one of the two tackled the applicant. The 1SG told the applicant, the more the applicant fought, the worse it was going to get. The applicant provides explicit details of the sex acts committed on him by the 1SG and the other individual, and he recounts how the 1SG tied the applicant's ankles with a belt, and put a ball gag in the applicant's mouth. After both men finished their sexual abuse of the applicant, they said, "That's what the little b__ deserves." The next morning, the applicant went to the hospital because his right thigh looked infected, and the doctors there treated him (the applicant states documents in his military medical records show this hospital visit). (9) By February 1986, the applicant had reached a point where he want to kill either himself or the 1SG; the 1SG again ordered the applicant to his house, and the applicant decided the only way to stop the abuse was to kill the 1SG. The applicant went to the 1SG's house hiding a foot-long piece of rebar in his pant leg; when the rebar fell out of his pants at the house, the 1SG flew into a rage and perpetrated the most brutal and painful rape the applicant had ever experienced. Eventually, the applicant was able to leave the 1SG's home, and he went directly to the hospital. He told the doctor he had been in a fight; the doctors had the applicant immediately admitted, and he remained in the hospital for two days. (10) In May/June 1986, and after the 1SG had subjected the applicant to two more incidents of rape, the applicant's leadership transferred him without explanation to Nellis Air Force Base in Las Vegas; he had no money and only the clothes on his back and a small bag of personal belongings. Shortly thereafter, the leadership relocated the applicant once more (this time to the Presidio of San Francisco) and again without explanation. Sometime in July 1986, they gave the applicant a drug test, and he tested positive for cocaine, marijuana, amphetamines, and alcohol. (11) At some point in August 1986, they told the applicant they were separating him for drug and alcohol dependency. The applicant decided to fight the discharge action, and he obtained several letters of recommendation from commanders and noncommissioned officers (NCO); all of them supported the applicant remaining on active duty. In late September, early October 1986, as the applicant walked towards his barracks, he saw a man approaching him; it was 1SG S__. The 1SG came up to the applicant laughing and saying, "You are going to get what is coming to you." A couple of days later, he learned, despite the letters of recommendation, the Army had decided to separate him, and on 31 October 1986, he received a general discharge under honorable conditions. The applicant remarks that he found it "intriguing" that the 1SG was in San Francisco around the applicant's date of discharge, and he opined that perhaps certain individuals in the Army must have known the 1SG was a predator and had used the applicant's general discharge as a way of keeping the applicant quiet. (12) The applicant's discharge devastated him; he used drugs and abused alcohol for many more years, hoping to forget the abuse the 1SG had inflicted. The applicant reached a point where neither cocaine nor alcohol helped, so he turned to heroin, and he used the heroin to numb his pain and, at times, to try to kill himself. Now, after 30 years and following a failed marriage, an unsuccessful suicide attempt, and numerous inpatient rehabilitation programs and thousands of dollars, the applicant has finally achieved sobriety; however, because he is clean and sober, the nightmares have reemerged to a terrifying extent. The applicant states he is disgusted that the 1SG stole 30 years of his life, but he recognizes he can never regain what he has lost; all he can do is work toward healing. Life remains a continuous struggle, and there are still days he does not want to live, but, so far, he has successfully maintained his sobriety. 3. The applicant provides a 4 November 2020 VA Rating Decision, which shows the VA awarded a 70 percent service-connection for PTSD with major depression; he also includes a VA letter, dated 6 January 2021, that lists the amount of the applicant's disability compensation and reports the applicant's combined disability rating is 80 percent. In addition, the applicant submits letters of support from his wife and son. Both give detailed descriptions of the debilitating effects of the applicant's sexual and drug abuse, as well as the negative impacts of those effects on their lives. 4. The applicant's service records show: a. On 6 November 1984, the applicant enlisted into the Regular Army for 4 years; he was 21 years old. Upon completion of initial entry training and the award of military occupational specialty 71G (Patient Administration Specialist), orders assigned him to Fort Irwin, and he arrived at his new duty station, on or about 11 April 1985. b. On 12 February 1986, the Fort Irwin Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) reported that the applicant's urinalysis specimen, taken on 8 January 1986, had returned positive for THC (Tetrahydrocannabinol; the active ingredient in marijuana). ADAPCP instructed the applicant's commander that, if not already enrolled in ADAPCP, the commander was to refer the applicant to ADAPCP and schedule him for a screening interview. c. On or about 14 February 1986, the U.S. Army Criminal Investigation Command (CID) opened an investigation, based on the applicant's positive urinalysis results. On 14 February 1986, the applicant gave a sworn statement, in which he reported the following: (1) 1SG S__ was the applicant's unit 1SG. At some point prior to Thanksgiving, the applicant happened to enter 1SG S__'s office, and female Corporal (CPL) A__ was there as well. The 1SG asked if the applicant would like to accompany the two of them (1SG S__ and CPL A__) to Las Vegas. The applicant agreed and they left for Las Vegas about 1800 hours that evening; the applicant recalled this happened on a weekday. (2) As they traveled to Las Vegas, the three stopped at a rest stop and, while there, the 1SG asked if the applicant would like to "do a line of cocaine." The applicant declined because he had never used cocaine before; the 1SG then took the cocaine himself by putting it on a piece of cardboard and inhaling it through his nose. The three then left the rest stop and continued on to Las Vegas. On their arrival, they gambled some, and then left the next morning around 0200 hours; they arrived at Fort Irwin around 0600, and the applicant went in to work later that day. (3) In response to CID's follow-up questions, the applicant stated he did not know where the 1SG had gotten the cocaine; since that incident, the 1SG had not offered the applicant any more drugs; and the 1SG never told the applicant not to tell CID about what had happened. The applicant further affirmed the 1SG had said he was working for CID. d. On 20 February 1986, the applicant provided an additional sworn statement: (1) The applicant stated he wanted to give CID additional facts about the Las Vegas trip; on several occasions during the trip, the 1SG put his hand on CPL A__'s leg and moved his hand up her thigh and between her legs. Additionally, while in Las Vegas, the 1SG gave the applicant $150 (which was on top of the $150 the 1SG had provided after cashing checks for the applicant before they left); the applicant also saw 1SG S__ give CPL A__ $1,000. The 1SG continued to pull money from an automatic teller machine until the machine rejected the 1SG's card. (2) The applicant went on to confirm that, while the 1SG used cocaine, the applicant and CPL A__ had smoked marijuana in the car with the 1SG. The applicant added that, the day before they sent the applicant to Nellis Air Force Base, the 1SG pulled the applicant into his office, closed the door, and then told the applicant, "Look what our friend (meaning A__) is doing to us. You know I wouldn't say anything against you to incriminate you. It's not over yet, so be careful, and if you need any help, just call the orderly room and they would give you my home phone." The 1SG also told the applicant, "They (meaning CID) would be coming down to talk to you so don't say anything that would incriminate yourself." (3) The applicant provided more information in response to CID's questions: * The applicant had never heard that the 1SG was making sexual advances toward CPL A__ * CPL A__ had told the applicant that the 1SG had been trying for weeks to make CPL A__ his mistress, and the applicant assumed the 1SG had given CPL A__ the money to show her what he could do if she agreed to be his mistress * As far as the applicant knew, CPL A__ never had any sexual relations with the 1SG e. On 20 February 1986, the applicant provided another clarifying statement to CID. (1) The applicant wanted to talk about his part in the drug activity within his unit. Between September 1985 and January 1986, the applicant was an occasional user of methamphetamine and marijuana; he had also once used LSD within that timeframe. He had obtained drugs from a Mr. B__ S__ and Mr. R__ H__, both members his unit; in addition, the applicant had procured methamphetamine from Ms. S__ J__'s civilian boyfriend (Ms. S__ J__ was also a member of the applicant's unit). The applicant added that he thought either Ms. S__ J__ or her civilian boyfriend (Mr. A__ P__) had something to do with the assaults perpetrated against him, but he could not be sure. (2) The applicant stated he had heard rumors about several individuals with the applicant's unit who were involved with drugs, but, besides the 1SG and CPL A__, he only had personal knowledge of Mr. B__ S__, Mr. R__ H__, and Ms. S__ J__. f. Effective 1 March 1986, the applicant's leadership promoted him to SP4. On 22 April 1986, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana, on or about 8 January 1986; the imposing official (the applicant's battalion commander) directed the applicant suspended reduction to private first class (PFC)/E-3, and the forfeiture of $100 per month for 2 months. On or about 25 April 1986, orders transferred the applicant to Letterman Army Medical Center, Presidio of San Francisco, for a pending rehabilitative reassignment. g. On 5 May 1986, the applicant's company commander, at the Letterman Army Medical Center, referred the applicant to ADAPCP for counseling and urine surveillance. On 12 June 1986, the applicant provided a urine sample that came back positive for marijuana. h. On 4 September 1986, and in consultation with the applicant's commander and the ADAPCP staff, the ADAPCP Clinical Director declared the applicant a rehabilitation failure; the director noted the applicant had entered ADAPCP, on 9 July 1986, following a command referral for cocaine abuse. The ACAPCP Clinical Director additionally stated that current regulations required the applicant's separation under the provisions of chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). i. On 10 September 1986, the applicant's commander advised him, via memorandum, that he was initiating separation action against the applicant under the provisions of chapter 9, AR 635-200. The commander based this action on the below- listed reasons; the applicant: * was declared a rehabilitation failure * had tested positive for marijuana a second time and while the applicant was enrolled in ADAPCP * had a continued and long history of drug abuse j. On 10 September 1986, the applicant's company commander signed two additional documents: (1) Memorandum, Subject: Resume of Military Record, per para 3-8f (Limitations on Characterization – Checklist of Member's Current Enlistment), AR 635-200 [Applicant]. The document listed the dates of the applicant's promotions, provided information about the applicant's 22 April 1986 NJP action, and stated the CID had investigated the applicant on suspicion of wrongful possession and use of controlled substances. The memorandum additionally noted the applicant had tested positive for THC while assigned to Fort Irwin, and positive for THC a second time while at Letterman Army Medical Center. (2) Memorandum, Subject: Chronological History of Drug Abuse [Applicant]. Orders initially attached the applicant, on 18 April 1986, to Letterman Medical Center for a rehabilitative assignment. The commander listed the dates the applicant first tested positive for THC, accepted NJP, and provided a statement to CID. He further stated, on 5 May 1986, he had referred the applicant to ADAPCP for counseling and urine surveillance, and that the applicant had tested positive on a second urinalysis test, administered on 12 June 1986. Based on the positive urinalysis, obtained during the applicant's enrollment in ADAPCP, and after consulting with the ADAPCP staff, the command had determined the applicant was a rehabilitation failure. k. On 12 September 1987, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the contemplated separation action and had explained the applicant's rights and the effect of waiving those rights. The applicant elected to submit statements in his own behalf, and he requested treatment at a Department of Veterans Affairs (VA) medical center. (1) The applicant submitted a self-authored statement to the separation authority, in which had confirmed he had been on active duty for 2 years, and he had come to the Presidio in April 1986. On his arrival at Presidio, he wanted to quit because he was disappointed in himself; however, the NCOs in his section supported him and pushed him into learning and taking on responsibilities. When Sergeant (SGT) H__ took leave, they put the applicant in charge of the section, and the applicant affirmed that he did very well. The applicant declared that he had learned from his mistakes, and he felt, with his NCO's support, he could become an asset to Patient Administration Directorate (PAD) and the U.S. Army. (2) The applicant submitted nine letters of support. (a) The applicant's PAD leadership, a colonel, lieutenant colonel, a master sergeant, and a staff sergeant, all lauded the applicant for displaying an above average capability to grasp the intricacies of medical records, his willingness to accept new tasks, and overall outstanding duty performance. Ms. I__ A. B__, Chief, Medical Records Administration Branch added the applicant had shown initiative in accomplishing special projects and had attained an appreciation for supervisory duties. Ms. J__ E. B__, Statistical Clerk, stated the applicant was well-mannered and thoughtful, and a very hard worker who was always willing to help when asked. (b) Two of the applicant's barracks floor sergeants stated the applicant had been conscientious about completing his assigned tasks, and, by his demonstrated cheerful outlook and unselfish attitude, the applicant made things easier for all of the Soldiers on the floor. (c) SGT J__ C. H__ rendered a letter of appreciation, addressed to the applicant, wherein he thanked the applicant for his outstanding support while SGT H__ took leave. The applicant's display of professionalism and expertise had helped ensure the section was among the best in the hospital. l. On 9 October 1986, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; as his authority, the commander cited chapter 9, AR 635-200. m. On 31 October 1986, orders separated the applicant under honorable conditions. His DD Form 214 shows he completed 1 year, 11 months, and 25 days of his 4-year enlistment contract, and item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) listed the following: Army Service Ribbon and two marksmanship qualification badges. Item 25 (Separation Authority) showed, "AR 635-200, PARA 14-12C"; item 26 (Separation Code) reflected, "JKK"; and item 28 (Narrative Reason for Separation) indicated, "MISCONDUCT DRUG ABUSE." 5. While the applicant acknowledges he abused drugs and alcohol while on active duty, he attributes his misconduct to the trauma that resulted from multiple sexual assaults, all perpetrated by a 1SG. a. During the applicant's era of service, and per AR 600-85, commanders were to make an effort to restore Soldiers to full functioning when they had become ineffective due to drug or alcohol abuse. Rehabilitation was a proven and cost-effective way of retaining Soldiers with necessary skills and experience; however, commanders were to separate any Soldiers who lacked the potential for continued military service, or who had failed to participate adequately in, or to complete rehabilitation. b. Per chapter 9, AR 635-200, commanders could separate Soldiers enrolled in ADAPCP, when, following consultation with the ADAPCP rehabilitation team, the commander determined further rehabilitative efforts were impractical. The available character of service could be either honorable or under honorable conditions, based on the Soldier's overall service record. c. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 6. 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), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hard copy medical record was not available for review. A review of his service record indicates he was referred to ADAPCP for substance abuse treatment after a positive urinalysis. He was subsequently determined to be a rehabilitation failure for continued substance abuse after his second positive urinalysis. A review of JLV indicates he received a service-connected disability rating of 70% for PTSD which was increased to 100% effective 21 Dec 2020. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. PTSD is a mitigating factor for misconduct that led to his discharge. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes (2) Did the condition exist or experience occur during military service? Y (a) Yes (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes (4) Does the condition or experience outweigh the discharge? (a) Yes BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding there is sufficient documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. PTSD is a mitigating factor for misconduct that led to his discharge. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was in error or unjust. Therefore, the Board granted relief to upgrade the applicant’s discharge to Honorable. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as honorable. 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): 1. AR 635-5 (Separation Documents), in effect at the time, required item 25 (Separation Authority) to list the regulatory authority cited in the directive authorizing discharge. For items 26 (Separation Code (SPD)) and 28 (Narrative Reason for Separation), the regulation directed DD 214 preparers to refer to AR 635-5-1 (SPD). 2. On 9 October 1986, the applicant's separation authority cited chapter 9, AR 635-200, as the applicant's regulatory authority for discharge. a. According to AR 635-5-1, the associated SPD is "JPC (JKK)," and the narrative reason for separation is "DRUG ABUSE REHABILITATION FAILURE." b. Items 25, 26, and 28, of the applicant's current DD Form 214, show the following: * Item 25 – "AR 635-200 PARA 14-12C" * Item 26 – "JKK" * Item 28 – "MISCONDUCT DRUG ABUSE" 3. As a result, correct the applicant's DD Form 214, ending 31 October 1986, by deleting the current entries in items 25, 25, and 28, and replacing them with the following: * Item 25 – "AR 635-200 , CHAP 9" * Item 26 – "JPC (JKK)" * Item 28 – "DRUG ABUSE REHABILITATION FAILURE" 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. 2. AR 600-85, in effect at the time, stated commanders were to make an effort to restore Soldiers to full functioning when they had become ineffective due to alcohol abuse. Rehabilitation was a proven and cost-effective way of retaining Soldiers with necessary skills and experience; however, the regulation required the separation of any Soldiers who lacked the potential for continued military service, or who had failed to participate in, or successfully complete rehabilitation. a. Entry into ADAPCP could occur by either self or command-referral; following referral, the ADAPCP team evaluated the Soldier to determine the appropriate path for rehabilitation. b. The ADAPCP had three rehabilitation tracks: * Track I – alcohol awareness education and individual/group counseling * Track II – a more intensive effort in individual/group counseling and conducted on a non-residential or outpatient basis; enrollment was for a minimum of 30 days; Soldiers in Track II could be transferred to Track III if additional treatment was required * Track III – 6 to 8-week intensive residential program, conducted under medical supervision and designed for Soldiers who could not respond to outpatient treatment or had a long history of abuse; a doctor determined if the Soldier should enter Track III, after consulting with the ADAPCP team 3. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations; it was applicable to all Regular Army enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 9 stated commanders could separate Soldiers enrolled in ADAPCP, and for whom the commander had determined further rehabilitative efforts were not practical; commanders made this determination in consultation with the ADAPCP rehabilitation team. The available character of service could be either honorable or under honorable conditions, based on the Soldier's overall service record. c. Paragraph 14-12c applied to Soldiers who had committed a serious military or civilian offense, where the specific circumstances warranted separation, and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge. The regulation considered the abuse of illegal drugs as serious misconduct, and, upon discovery of the drug offense, commanders were required to initiate separation action against all second-time drug offenders. The Maximum Punishment Chart in the Manual for Courts- Martial, in effect at the time, showed a punitive discharge among the maximum punishments for the following UCMJ violations: Article 112a (Wrongful use of Controlled Substances). 4. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 5. 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. 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) AR20210010060 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1