IN THE CASE OF: BOARD DATE: 7 January 2022 DOCKET NUMBER: AR20210013585 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge to honorable. 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, he volunteered to join the Army during Operations Desert Storm/Desert Shield; as an American, he felt it was his duty to serve. a. The applicant successfully completed his initial entry training without incident. He points out that, during both basic combat training and advanced individual training (AIT), his chain of command selected him to be a squad leader, and he performed his leadership duties with pride; he finished at the top of his AIT class. b. When he got to his first duty station, he and his wife started having relationship issues; his wife had a problem with the separation she had experienced, and she did not want to go to Germany. For the applicant, his family was his world; he tried hard to convince his wife to change her mind, and when he failed, he felt depressed. He acknowledges that, after this, he made some bad character decisions because he was not in his right state of mind. He started drinking and took illegal drugs; when he got to Germany, he tested positive on a drug urinalysis test. c. The applicant contends, during the rest of his time, he performed his military duties to the best of his abilities; however, he suffered two major setbacks: his wife filed for divorce and his grandmother, who had raised him, passed away. Despite these emotional difficulties, the applicant nonetheless did his duty, and he asserts he showed signs of improvement. He additionally notes that, before he got out of the Army, he took a couple more drug tests, one in Germany and the other at Fort Dix, NJ; both were negative. The applicant declares his regret for his bad decisions, and asks the Board for mercy when it considers his request. 3. The applicant's service records show: a. On 13 March 1991, the applicant enlisted into the Regular Army for 4 years; he was 22 years old. Upon completion of IET and the award of military occupational specialty 74C (Record Telecommunications Center Operator), orders assigned him to Germany, and he arrived in Germany, on 22 August 1991; on or about 23 August 1991, the applicant provided a urine sample for a drug test. On 26 August 1991, he arrived at his unit and, effective 13 September 1991, his chain of command promoted him to private (PV2)/E-2. b. On or about 25 September 1991, the results of the applicant's drug test came back positive for cocaine; on 10 October 1991, the U.S. Army Criminal Investigation Command (CID) opened an investigation into allegations of the applicant's possession and use of cocaine. On 11 October 1991, after CID warned him of his rights, the applicant gave CID a statement, in which he admitted that, on or about 19 August 1991, and while home on leave, he had gone to a friend's house and, after drinking too much, he fell asleep. When he awoke, he told his friend he was not feeling well. His friend said he had something to wake up the applicant, so the applicant got up and went to a table where there was some white powder; after trying some of the powder, the applicant went back to sleep. The applicant freely admitted he had tried the powdery substance, and, had he realized it was cocaine and that the Army considered its use illegal, he would never have done so. c. On 30 October 1991, the applicant's noncommissioned officer-in-charge (NCOIC) counseled him for failing to report for duty as directed on three occasions (12, 16, and 19 October 1991). d. On 3 December 1991, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for having used cocaine, on or about 19 August 1991. (1) During a closed hearing before the imposing official (the applicant's group commander), the applicant offered the following statement, addressing matters in defense, mitigation, and/or extenuation: (a) The applicant stated he had joined the Army, in March 1991, because it was something he had always wanted to do. Since arriving at his present unit, he had done his best to learn his job, perform his duties well, and work well with others; he felt his performance was good. (b) One day in August, when he was on his way to Germany, he stopped by a friend's house, and there were people there that he did not know. He later laid down after drinking too much and because he was not feeling well; someone woke him up and gave him a substance, telling him it would make him feel better. The applicant contended he was "not really aware" the substance was cocaine, so he took it and fell back to sleep. (c) Because he had just come out of AIT, he did not know the Army's laws against drug use and how harshly the Army treated drug offenders. Had he known, he would have taken more precautions and more soberly considered his actions. Nonetheless, the applicant now understood the Army's penalties; he had already taken a two-day drug and alcohol education class, and he was participating in weekly group sessions, which he felt were benefitting him. (d) The applicant asked his group commander for a chance to redeem himself and prove, first to himself, then to his coworkers and chain of command, that he was a good Soldier and hard worker; he felt he would become an asset to the U.S. military. (2) On 3 December 1991, after considering all matters presented, the NJP imposing official found the applicant guilty; the punishment included reduction to private (PV1)/E-1 and a suspended forfeiture of pay. e. Between January and February, the applicant's NCO leadership counseled him six times: * 23 January 1992 – failure to report to duty on 17 January 1992, at the time prescribed; when the applicant's NCOIC and another Soldier went to the applicant's room, they found him asleep in bed * 5 February 1992 – on 4 February 1992, the applicant arrived at work 50 minutes late * 5 February 1992 – on 4 February 1992, the applicant arrived late, then left work about an hour later; when, at 1255, his NCOIC and another Soldier checked the applicant's room, they found the applicant out of uniform in his bathroom; the NCOIC assumed the applicant had been sleeping * 21 February 1992 – on 12 February 1992, the barracks NCO had ordered the applicant to re-buff the hallway; the applicant did not comply * 21 February 1992 – on 14 February 1992, the applicant arrived at work an hour late * 21 February 1992 – during the week of 10-14 February 1992, the applicant failed to report three times for mandatory physical training (PT) f. On 3 March 1992, the Chief of the supporting Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) provided the applicant's commander a synopsis of the applicant's ADAPCP Rehabilitation Treatment. (1) On 1 November 1991, the command referred the applicant for ADAPCP evaluation, based on the applicant's positive urinalysis for cocaine. Counselors subsequently enrolled him into Track II (Non-Residential Rehabilitation) group counseling. Starting on 4 December 1992, the applicant attended 12 hours of alcohol and drug awareness classes and nine group-counseling sessions; the applicant was a "no-show" for two group sessions, attended two individual sessions, and ADAPCP conducted seven command consults. (2) The applicant minimally participated in group, and he remained in strong denial of his drug and alcohol problems; the Chief, ADAPCP assessed the applicant's chances for further rehabilitation as poor, and she recommended the applicant's consideration for separation under chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). g. In the early morning hours of 21 March 1992, the military police (MP) responded to a report of an assault in the applicant's barracks room; the applicant had assaulted his roommate (Private C__ E. W__) after discovering 90 Deutsch Mark missing from his secured wall locker. During the altercation (and later to the MPs), Private W__ admitted to stealing the German money. Although the MPs noticed the odor of alcohol on the applicant, he passed a field sobriety test. The MPs apprehended both the applicant and Private W__; Private W__ received medical treatment at a local German hospital for the injuries he had sustained in the fight. h. On 24 March 1992, the applicant's company commander counseled the applicant, using a DA Form 4856 (General Counseling Form). The commander advised the applicant he was initiating bar to reenlistment action against the applicant because ADAPCP had classified the applicant as a rehabilitation failure, and because, between October 1991 and February 1992, the applicant had failed to report for duty on time on ten occasions. Later that same date, the applicant's commander initiated bar to reenlistment action, citing the applicant's NJP for cocaine use, six counseling statements for failure to report as directed, one counseling for failure to obey an order, and ADAPCP Rehabilitation Failure notification. The battalion commander subsequently approved the bar to reenlistment. i. In August 1992, the applicant's NCO leadership counseled him three times: * 5 August 1992 – on 27 July 1992, the applicant told Mr. K__ he was going to "DINAH" class; this class required attendees to have a security clearance, but the applicant did not have one; when the NCO checked, the applicant had not gone to class; the NCO later found the applicant asleep in his room * 5 August 1992 – on 29 July 1992, the company commander made a courtesy visit to the applicant's worksite; when the commander entered the "Reproduction Room," he found the applicant asleep behind a desk * 18 August 1992 – on 17 August 1992, the applicant failed to report for PT and then did not show up for work j. On 16 September 1992, the applicant accepted NJP from his company commander for leaving his place of duty, on 27 July 1992; for being derelict in his duties by failing to remain awake, on 29 July 1992; and for failing to report for PT, on 17 August 1992. k. On or about 21 September 1992, the applicant participated in a drug urinalysis test; on 26 October 1992, the results came back positive for "THC" (Tetrahydrocannabinol; the active ingredient in marijuana). l. On 6 November 1992, the applicant's company commander advised him of his intent to initiate separation action, under the provisions of paragraph 14-12c (Commission of a Serious Offense), chapter 14 (Separation for Misconduct), AR 635-200. The commander stated he based this action on the applicant's two positive urinalysis drug tests (respectively, on 26 August 1991 and 21 September 1992). The commander additionally noted the least favorable character of service would be under other than honorable conditions, but the separation authority would make the final determination. m. On 13 November 1992, after consulting with counsel (a Judge Advocate General officer), the applicant acknowledged counsel had advised him of the basis for the contemplated separation action, as well as his rights and the effect of waiving those rights. The applicant waived his right to a personal appearance, with counsel, before an administrative separation board; he also affirmed counsel had informed him of his right to submit a conditional waiver of his right to an administrative separation board, but he did not indicate he would request such a waiver. The applicant elected to submit statements in his own behalf; however, no statements are available for review. n. On 19 November 1992, the applicant's company commander forwarded his recommendation to the separation authority, based on the applicant being a second- time drug offender. The commander stated, "Further attempts to rehabilitate him into a satisfactory Soldier are unlikely to succeed. Moreover, his retention would have an adverse impact on military discipline, good order, and morale." The commander cited the applicant's two NJP actions and noted the applicant had received "numerous counseling statements for failure to repair (i.e. fail to report for duty at a prescribed time)." The commander additionally pointed out the applicant had been involved in an "aggravated assault incident on 21 March 1992." o. In an undated endorsement, the separation authority approved the commander's separation recommendation and directed the applicant's under other than honorable conditions discharge. On 11 February 1993, orders discharged the applicant accordingly. p. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 10 months, and 29 days of his 4-year enlistment contract; he was awarded or authorized the Army Service Ribbon and a marksmanship qualification badge. 4. The applicant requests the upgrade of his under other than honorable conditions discharge. While he acknowledges his misconduct, he maintains emotional setbacks contributed to his drug use, and that he, nonetheless, tried to do his best and actually showed improvement prior to his separation. a. Per AR 635-200, commanders were required to initiate separation action against Soldiers who had committed serious offenses for which the UCMJ authorized a punitive discharge. The regulation considered the abuse of illegal drugs as a serious offense, and commanders were mandated to process two-time offenders for separation upon discovery of a drug offense, regardless of grade. The UCMJ showed a punitive discharge was among the maximum punishments for wrongful use of controlled substances. b. 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. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities issued a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12c (2) 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 commanders were required to initiate separation against two-time offenders, grades E-1 through E-9, upon discovery of a drug offense. 3. The Manual for Courts-Martial, United States 1984, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included punitive discharges among the maximum punishments. 4. 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) AR20210013585 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1