IN THE CASE OF: BOARD DATE: 28 September 2021 DOCKET NUMBER: AR20210010966 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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, in effect, what they though of him was incorrect. He has issues now that can be attributed to the toxic water they drank in basic training and advanced individual training (AIT). He has problems associated with nerve agents. He has eyes with oversized lenses. His hand "turn off" three months at a time. He has circulation issues. He had no idea about the toxins until his friend, who talked him into enlisting, died. 3. On 24 February 1979, at the age of 17 years old, the applicant enlisted into the US Army Reserve (USAR) delay entry program (DEP) for a period of 6 years. There was no evidence of parental consent for enlisting in the military prior to the age of 18. On 25 September 1979, he was discharged from the USAR DEP and entered active duty for a period of 3 years. 4. The applicants DA Form 2-1 (Personnel Qualification Record) shows in item: * 5 (Oversea Service) he ws in Germany from 21 January 1980 to 19 September 1982 * 6 (Military Occupational Specialties (MOS)) he was a 95B Military police * 18 (Appointments and Reductions) Private/E-1 (PVT) 25 September 1979, Private/E-2 (PV2) 25 March 1980, Private First Class (PFC) 29 September 1980, Specialist Four (SP4) 1 January 1980 * 35 (Records of Assignments) 28 September 1979 One Station Unit training, 30 January 1980 Germany 5. On 16 July 1981, the applicant's unit preferred court-martial charges against him for: * dereliction of duty on or about 19 May 1981, 20 May 1981, and 8 June 1981 by failing to apprehend individuals he knew were wrongfully using and possessing marijuana * wrongful use and transfer of marijuana on or about 11 May 1981, 13 May 1981, 15 May 1981, 19 May 1981, and 20 May 1981 * wrongful sell of marijuana on or about 21 May 1981 and 8 June 1981 6. On 13 August 1981, the applicant underwent a Report of Mental Status Evaluation, which shows he was diagnosed with improper use of cannabis. He should return for enrollment in the Army Substance Abuse Program if his chapter 10 was not approved. 7. Sometime after 16 July 1981, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). In his request, the applicant affirmed no one subjected him to coercion and counsel had advised him of the implications of his request; he additionally acknowledged he was guilty of the charges. The applicant declined to make a statement on his own behalf. 8. The applicant's chain of command recommended approval of his request for discharge and on 18 August 1981, the appropriate separation authority approved the applicant's request and directed his discharge under other than honorable conditions; in addition, he ordered the applicant's rank reduction to private/E-1. 9. On 2 September 1981, the applicant completed a Medical Examination for Separation Statement of Option declining a separation medical examination. 10. On 2 September 1981, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 11 months, and 8 days of his 3-year contractual obligation, and was awarded or authorized: * Sharpshooter Marksmanship Badge M-16 Rifle * Sharpshooter Marksmanship Badge Hand Grenade * Marksman Marksmanship Badge .45 Caliber Pistol * Army Service Ribbon 11. The applicant's service record contained medical documentation which show he was seen by a doctor on: * 14 January 1980 for a cough and headache * 22 February 1980 for a sore throat * 25 November 1980 for a sore throat and runny nose * 3 December 1980 for a rash on his face * 5 December 1980 for a rash on his face * 8 May 1981 injury to his little finger * 18 May 1981 pain in a finger on his left hand * 20 June 1981 pain in his right hand * 22 June 1981 pain in his right hand * 24 June 1981 follow-up on pain in his right hand * 20 July 1981 pulled muscle in neck * 22 July 1981 flu, stuffy nose, body aches, swollen glands * 27 July 191, removal of cast * immunization records 12. On 24 May 1991, the applicant petitioned the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge, stating, in effect, he only had one incident in his 24 months of service. He hadn't had any incident for 10 years. He was a good troop. His promotions should speak to that. He stayed in the service field. He worked maintenance and was in the same position for over five years. He made supervisor. He held keys for 468 apartments year round and supervised a nine- member crew. 13. On 15 September 1993, the applicant received a letter from the ADRB, which denied his request. The Case Report and Directive shows the ADRB found he ws properly and equitably discharged. 14. The applicant states, in effect, what the Army thought of him was incorrect. He has health issues now as a result of drinking toxic water in basic and AIT. He has problems associated with nerve agents. He was not made aware of the toxins until a friend he enlisted with dies. a. The applicant's service records show he was seen by the doctor on several occasions for sore throats and headaches as well as injuries to his finger, hand, and neck. There is no indication he was exposed to toxic drinking water. The applicant did not provide medical documentation showing his current ailments. b. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was included as a punishment, could request separation under chapter 10, Army Regulation 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The Manual for Courts-Martial showed punitive discharges were among the authorized maximum punishments for the UCMJ violations involving drug use, possession, and transfer. c. The ABCMR does not 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, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 15. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 2 September 1981 discharge characterized as under other than honorable conditions. He states: “What was said then thought of me was incorrect. I have issues now that can be attributed to the toxic water drank at basic and AIT.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 25 September 1979 and was discharged on 2 September 1981 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (1 March 1978): Discharge for the Good of the Service – Conduct Triable by Court Martial. c. A Charge Sheet (DA Form 457) dated 16 July 2018 shows the applicant was charged with three counts of “dereliction in the performance of his duties in that while on duty as a military policeman he willfully failed to apprehend or to report individuals whom he knew to be engaged in criminal conduct, that is wrongful use and possession of marijuana in the hashish form, as it was his duty to do;” five counts of “wrongfully use and transfer of some amount of marihuana in the hashish form;” and two count of wrongfully selling marijuana. d. A mental status evaluation completed 13 August 1981 sound no significant mental illness, that the applicant was mentally responsible, was able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the medical retention standards in chapter 3 of AR 40-501, Standards of Medical Fitness. e. On 10 August 1981, he voluntarily requested discharge for the good of the Service under the provisions of Chapter 10, AR 635-200. The applicant declined a separation medical examination. f. His request was approved by the commanding general of the 1st Armored Division on 18 August 1981. He directed the applicant be discharged from the service with the grade of Private E-1 and issued a discharge certificate under other than honorable conditions. g. Review of the submitted medical documentation shows he was seen for several minor conditions, including a rash, upper respiratory infection, measles, neck muscle strain, and a finger fracture. h. JLV shows his only behavioral health diagnoses are alcohol dependence and cannabis abuse. i. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. j. It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor a referral of his case to the Disability Evaluation System is warranted. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD 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 medical records and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 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. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court- martial, and no more than one special court-martial conviction. b. A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. 3. The Manual for Courts-Martial, Table of Maximum Punishments showed use, possession, and transfer of an illegal drug carried a punitive discharge among their authorized maximum punishments. 4. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated, in paragraph 7-64c (Approved for Discharge from Service Under Other than Honorable Conditions), Soldiers being separated under other than honorable conditions, as a result of a determination made by the general court-martial authority, were to be reduced to the lowest enlisted grade. 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) AR20210010966 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1