IN THE CASE OF: BOARD DATE: 8 June 2022 DOCKET NUMBER: AR20210015842 APPLICANT REQUESTS: The applicant requests the upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * Four letters of support * Three letters of appreciation * Master of Business Administration Diploma * State Nursing License 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 that he feels his service was "more than honorable," given that he had no disciplinary problems or drug use prior to a documented sexual assault; the assault was related to "ongoing sexual and physical abuse," perpetrated by an E-7 and two other noncommissioned officers (NCO). The applicant contends that the NCOs retaliated against him when he tried to report the abuse. a. As proof he was a model Soldier before the abuse, the applicant points out he was one of the few in his unit to receive a Secret security clearance, and he was part of the team that field-tested a new field artillery weapons system for the Department of Defense. He goes on to note it was during this training that the NCOs' abuse of the applicant escalated, and the applicant started to experience mental and disciplinary problems. b. Despite the debilitating effects of the abuse he sustained, the applicant went on, after discharge, to complete an advanced college education, have a successful career, and raise of family of five well adjusted, and now fully-grown, children. In addition, the applicant served as a firefighter, paramedic, and then a critical care nurse; as a self- taught software engineer, he has managed software development for a major healthcare corporation. Further, with the start of the COVID-19 pandemic, he worked as a traveling critical care nurse, and he has served in some of the worst hit parts of the country. As a result, he himself contracted COVID-19 twice; required hospitalization for more than 3 months, with placement on a ventilator; and he nearly died twice. He now suffers from permanent physical and neurological damage. c. The applicant affirms he has not used any drugs since his discharge, nor has he been involved in any disciplinary issues. He has continually sought employment in public service, and he credits his resilience, perseverance, and sense of social duty to his Army experience. The applicant states he is proud of his time in the military, but, for more than 36 years, his discharge has been a source of tremendous shame; he would be extremely grateful if, in effect, the Board upgraded his character of service and freed him from that shame. d. In support of his request, the applicant provides letters of support and appreciation. (1) The letters of support are from friends and coworkers who all affirm the applicant is an upstanding citizen and model parent who has demonstrated competence, resilience, and perseverance. With the onset of the COVID-19 pandemic, the applicant sacrificed his personal life to help fight the disease in his capacity as a critical care nurse. Additionally, the applicant has been clean and sober for 30 years, and he remains active in Alcoholics and Narcotics Anonymous. (2) Three letters of appreciation that describe how the applicant exceeded expectations as a manager of software development for a major healthcare corporation; how he helped a hospital improve its care of patients by implementing an operational process and performance initiative; and, as a critical care nurse during the COVID-19 pandemic, how he ran, headlong, into danger to provide lifesaving care and comfort to patients. 3. The applicant's service records show: a. On 29 June 1982, the applicant enlisted into the U.S. Army Reserve Delayed Entry Program (USAR DEP); on 11 August 1982, the Army's Central Clearance Facility granted the applicant a Secret security clearance. b. On 19 October 1982, the Army discharged the applicant from the USAR DEP and immediately enlisted him into the Regular Army for 3 years; he was 18 years old. Upon completion of initial entry training and the award of military occupational specialty 13F (Fire Support Specialist), orders assigned him to Fort Riley, KS, and he arrived at his unit (a field artillery battalion) on 28 February 1983. Effective 19 April 1983, the applicant's leadership promoted him to private (PV2)/E-2. b. On 19 May 1983, the applicant's NCO leadership counseled him, using a DA Form 4856 (General Counseling Form), after the applicant failed to report for physical training (PT) and work call formations. On 18 June 1983, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for having failed to report on time for battalion guard; punishment included a suspended reduction to private (PV1)/E-1. c. In September, and again in November 1983, the applicant's NCO leadership counseled him for minor infractions: * On 27 September 1983, the applicant failed to report for PT formation; the NCO ordered the applicant to move into the billets by 30 September 1983 * On 23 November 1983, the NCO stated the applicant had been in the unit 11 months and received 7 traffic tickets; the NCO intended to recommend the suspension of the applicant's on-post driving privileges; (the applicant's service record does not show the suspension of driving privileges) d. On 23 January 1984, U.S. Army Criminal Investigation Command (CID) initiated an investigation after a report that the applicant was a victim of an indecent assault; on 21 January 1984, a fellow Soldier made sexual advances toward the applicant and placed his hand on the applicant's genitals and upper thigh. As the Soldier left the room, the applicant hit the Soldier several times in the face with a closed fist. On 14 February 1984, the applicant accepted NJP for assaulting a fellow Soldier, on 21 January 1984; the imposing commander's punishment included a suspended reduction to PV1. e. Effective 1 June 1984, the applicant's chain of command promoted him to private first class (PFC)/E-3. On 19 July 1984, the applicant's NCO counseled the applicant because he had entered the applicant's room, at 0545 hours, and found the applicant still asleep; the NCO noted this was a repeated offense, and he would not tolerate further incidents of this nature. f. On 29 November 1984, the applicant accepted NJP from his battalion commander after urinalysis testing revealed, at some point between 20 and 30 July 1984, the applicant had used marijuana. The battalion commander's punishment consisted of reduction to PV2, forfeiture of $300 per month for 2 months (with one month suspended until May 1985), and 45-days' extra duty and restriction. g. On 10 December 1984, the applicant's chain of command referred him for screening at the supporting Alcohol and Drug Abuse Prevention and Control Program (ADAPCP); the rehabilitation team enrolled the applicant in Track II (Rehabilitation; intensive individual or group counseling). h. On 19 December 1984, the applicant's battery commander-initiated bar to reenlistment action against the applicant; the commander cited the applicant's three NJP actions, his seven traffic violations, and his numerous counseling statements based on missing formation. On 7 January 1985, the applicant's battalion commander approved the bar to reenlistment. i. On 24 January 1985, the imposing official for the applicant's 29 November 1984 NJP vacated the suspended forfeiture due to a positive urinalysis test. On 5 February, and again on 7 February 1985, the applicant's NCO leadership counseled him for being "out of ranks" for unit formation. j. On 12 February 1985, and in consultation with the applicant's commander and the ADAPCP staff, the ADAPCP Clinical Director declared the applicant a rehabilitation failure; the applicant's counselor noted the applicant had made no effort towards rehabilitation and had stated he did not intend to do so, if he continued in ADAPCP. k. On 13 February 1985, the applicant accepted NJP for failing to report to the 5 February 1985 morning formation. l. On or about 25 March 1985, the applicant's commander advised him, via a DA Form 2496 (Disposition Form), that he was initiating separation action against the applicant under chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). m. On 25 March 1985, 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; however, any statements he provided are not available in his service record. n. On 26 March 1985, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 1 April 1985, orders discharged the applicant accordingly. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 5 months, and 13 days of his 3-year enlistment contract. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the award of the Army Service Ribbon and two marksmanship qualification badges. o. On or about 8 April 1992, the applicant petitioned the Army Discharge Review Board (ADRB), requesting the ADRB to upgraded his character of service and change his narrative reason for separation to show "Secretarial Authority." (1) The applicant argued his request was in the interests of equity, and he pointed out that nearly 10 years had elapsed since his separation; he maintained it was reasonable for the ADRB to assume he had matured and become more responsible. In addition, he asked the ADRB to weigh the life-long stigmatization of a less than honorable character of service; to consider his youth, when he committed the infractions; and to apply empathy and compassion in its treatment of his case. (2) On 23 January 1995, the ADRB conducted a records review and, after evaluating the applicant's argument and service record, voted to deny relief. The ADRB noted the applicant had provided no documentation to substantiate his good post- service conduct. The ADRB did agree, however, that the applicant's narrative reason for separation needed to change to show: "Drug Rehabilitation Failure." (3) On 4 May 1995, the U.S. Army Reserve Personnel Center issued the applicant a DD Form 215 (Correction to DD Form 214), which changed the applicant's narrative reason for separation to, "Drug Rehabilitation Failure." 4. The applicant requests the Board upgrade his character of service. 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 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. 5. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hardcopy medical records were not available for review. A review of his service record indicates he was enrolled in mandatory substance abuse treatment on 10 Dec 1984. On 28 Jan 1985, he was seen for a mental status evaluation and he met retention standards IAW AR 40-501. On 12 Feb 1985, the applicant was determined to be a rehabilitative failure. A second mental status evaluation was completed on 13 Feb 1985 and he was cleared for administrative separation. A review of JLV indicates the applicant has received medical care at the VA since February 2016. He was diagnosed with Major Depressive Disorder on 29 Mar 2021. He has also been diagnosed and treated for Bipolar Disorder, PTSD, and Alcohol Dependence. The applicant has a service connected disability rating of 30% with 20% for degenerative arthritis of the spine and 10% for tinnitus effective 26 Apr 2021. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. MST is a mitigating factor for the 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? (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: 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 medical review, the Board concurred with the medical opinion finding there is no documentation to support a behavioral health diagnosis at the time of his discharge. However, MST is a mitigating factor for the misconduct that led to his discharge. The Board agreed that the applicant’s case warrants clemency in that the applicant was discharged for misconduct but was mitigated due to his MST. The Board found the applicant’s post-service achievements and character reference letters have mitigated the instance of misconduct resulting in the discharge characterization. Therefore, the Board found that the applicant’s case warrants clemency with an upgrade of his discharge to honorable. 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): N/A 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. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. 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 4. 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. 5. 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. 6. 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. a. 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. b. 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) AR20210015842 1 ABCMR Record of Proceedings (cont) AR20210015842 1