IN THE CASE OF: BOARD DATE: 9 May 2022 DOCKET NUMBER: AR20210016462 APPLICANT REQUESTS: Reconsideration of his earlier request to upgrade his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * Letter of Appreciation (LOA) * Photocopy of his DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 12 September 1994 * Photocopies of his Driver’s License and Department of Veterans Affairs, Healthcare Enrollee Card * Character Reference Letter, dated 28 May 2021 FACTS: 1. Incorporated herein by reference are military records as were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR1999029427, on 11 February 2000. 2. As a new argument, the applicant states: a. He suffered overt racism, harassment, and reprisal from his white commanding officer, [Captain (CPT/O-3)] six months before his discharge at Fort Bragg, NC in 1988. He notes he served without incident under a previous commander, CPT. The applicant’s first sergeant, First Sergeant (1SG) tried to defend the applicant by telling CPT the applicant was not a troublemaker, but CPT just continued his expressions of disdain and overt anger towards the applicant, declaring the applicant should not be dating white women. b. The applicant asserts that CPT set the applicant up by tampering with both his and another Soldier’s urine sample during their drug test; the applicant points out that, after his drug test results came back positive, CPT spoke up in his defense and wrote an official recommendation to JAG (Judge Advocate General). The applicant states his discharge was CPT’s final racist reprisal and parting gift. The applicant further argues that, by not upgrading his discharge, the military is essentially enabling other commanders to feel validated in continuing their racist actions, and the discharging of good black men with exemplary duty. “Stop enabling overt racism! Enough is enough.” 3. In support of his current application, the applicant provides: * a letter of achievement he received for his performance while serving on funeral detail; * a photocopy of his DD Form 215; * a photocopy of his Driver's License and State ID; and * a character letter attesting to the applicant’s character as a Soldier prior to the arrival of CPT and him witnessing CPT maltreatment of the applicant; such as assigning him “crappy” details and having him pull CQ when another Soldier got ill; after seeing him in a relationship with a white woman 4. The applicant's service record show: a. On 3 December 1988, the applicant enlisted in the Regular Army, for a 3 year service commitment. Upon completion of One-Station-Unit-Training; the award of military occupational specialty (MOS), 11B (Infantryman), and completion of the Basic Airborne Course, orders assigned the applicant to an infantry regiment within the 82nd Airborne Division at Fort Bragg; he arrived at his unit, on or about 28 April 1986. b. On 4 March 1987, the applicant received a 505th Parachute Infantry Regiment (PIR), Certificate of Achievement for outstanding performance during a deployment to Honduras; the available record does not indicate the length of this deployment. c. On 22 January 1988, the applicant provided a urine sample, as part of a random unit urinalysis (UA) inspection. (1) The DA Form 5180-R (Urinalysis Custody and Report Record), shows observers received the urine specimens from the individual Soldiers, and the observers then sealed the specimens before releasing them to the unit alcohol drug coordinator (UADC). (2) The UADC submitted the specimens to the 82nd Installation Biochemical Testing Coordinator (IBTC) the same day. The IBTC verified the integrity of the collection process and placed the specimens in a secured temporary storage area until 25 January 1988. (3) On 26 January 1988, and prior to being released to the field drug testing laboratory (FTDL), the specimens were placed in a sealed container and shipped to the drug testing lab (DTL) by courier. On 28 January 1988, the DTL received the containers with the seal intact and placed the containers in temporary storage. (4). On 2 February1988, a laboratory certifying official removed the specimens from temporary storage, and the official conducted a reverification; the specimen submitted by the applicant tested positive for cocaine. (5). On 3 February 1988, the DTL forwarded the results to the applicant's command. Documentation indicates the applicant's urine sample remained under positive signature and storage control throughout the process. 5. On 16 February 1988, the applicant accepted non-judicial punishment (NJP), from his battalion commander, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ); the battalion commander charged him with the wrongful use of cocaine. After a closed hearing, in which the applicant personally presented matters in defense, extenuation, and/or mitigation, the battalion commander found him guilty; the punishment included reduction to pay grade E-1, and the applicant did not elect to file an appeal. 6. On 17 February 1988, the applicant underwent a separation medical and mental status examination. a. In his Standard Form (SF) 93 (Report of Medical History), the applicant stated he was in good health and not taking any medications at that time. On the applicant's SF 88 (Report of Medical Examination), the examining physician declared the applicant as qualified for separation. b. The same physician who completed the applicant's separation physical prepared the applicant's DA Form 3822-R (Report of Mental Status Evaluation); the form shows the applicant met medical retention requirements, as prescribed in Army Regulation (AR) 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). 7. On 25 March 1988, the applicant’s battalion commander (not company commander) notified him of his intent to separate the applicant, per paragraph 14-12c (Commission of a Serious Offense), AR 635-200 (Personnel Separations – Enlisted Personnel). In stating his reason, the battalion commander cited the applicant's NJP for illegal use of cocaine. The battalion commander further advised the applicant he was recommending an under other honorable conditions discharge, but the final decision rested with the separation authority. a. The applicant acknowledged receipt of his battalion commander’s notification the same day. b. The battalion commander submitted his formal recommendation for the applicant's separation, on 25 March 1988, and he stated the applicant's performance of duty had been marginal. 8. On 7 April 1988, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the proposed separation action, his available rights, and the effect of waiving those rights. The applicant voluntarily submitted a conditional waiver of his rights and consideration of his case by an administrative separation board, contingent upon receiving a characterization of service no less than an under honorable conditions (general) discharge. In addition, the applicant elected to submit a statement in his own behalf; however, any statement he may have submitted is unavailable for review. 9. On 15 April 1988, the applicant’s battalion commander recommended approval of the applicant's conditional waiver and advocated the applicant's separation with general discharge under honorable conditions. 10. On 18 April 1988, the separation authority approved the battalion commander's separation recommendation and directed the applicant's general discharge under honorable conditions; as his regulatory basis, the separation authority cited AR 635-200, chapter 14, paragraph 14-12c. 11. On 5 May 1988, orders separated the applicant with a general discharge under honorable conditions, per AR 635-200, paragraph 14-12c; his DD Form 214 shows he completed 2 years, 5 months and 3 days of his 3-year contractual obligation. In addition, the form reflects the following awards: Army Service Ribbon and two marksmanship qualification badges. 12. On 23 May 1994, the applicant personally appeared before the Army Discharge Review Board (ADRB) to upgrade his discharge; after hearing testimony and reviewing evidence, the ADRB voted to deny the applicant's upgrade request but recommended changes to his DD Form 214. On 12 September 1994, the ADRB issued a DD Form 215 with the following corrections: * Item 25 (Separation Authority) from “AR 635-200 PARA 14-12c SEC III” to AR 635-200, PARA 14-12c” * Item 28 (Narrative Reason for Separation) from “Misconduct – Drug Abuse” to “Misconduct” 13. The applicant applied to the ABCMR for an upgrade of his general discharge however, the Board denied his petition for relief on 11 February 2000. 14. The applicant requests an upgrade of his characterization of service. a. His record shows he tested positive for illegally using cocaine in violation of Article 112a, UCMJ and he accepted NJP for his cocaine use. b. In regards to his contention regarding racial discrimination. He states his racist commander tampered with his urine and he felt discriminated against because other Solders had failed 3 drug test before being discharged. Neither the applicant nor his records provide evidence regarding his contentions regarding discrimination. The ABCMR is not an investigative agency, the burden of proof is the responsibility of the applicant. The applicant did not allege racism or tampering of his urine specimen in his previous applications to the ADRB and ABCMR. He completed 2 years, 5 months and 3 days of his three year contractual obligation. c. Paragraph 14-12c, AR 635-200, in effect at the time, provided a Soldier could be separated for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. The regulation stated the issuance of a discharge under other than honorable conditions was normally appropriate; however, separation authorities could award an honorable or a general discharge, if, during the current enlistment period of obligated service, the Soldier received a personal decoration, or the separation authority determined an honorable or a general discharge was warranted. d. AR 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP)) required commanders to refer Soldiers for screening after obtaining evidence of drug abuse; once Soldiers had been screened and ADAPCP confirmed they were not dependent on the drug in question, commanders could proceed with separation proceedings. e. AR 635-200, Chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) provided the authority for discharging Soldiers, based on their failure to participate successfully in drug or alcohol rehabilitation, Commanders could proceed with discharge proceedings after a Soldier had enrolled in ADAPCP and the commander, in coordination the ADAPCP rehabilitation team, determined the Soldier was a rehabilitation failure. f. According to the MCM that was in effect at the time, the maximum punishment for Article 112a, UCMJ –– (Wrongful use, possession, etc., of controlled substances) included a punitive discharge. 15. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. 16. MEDICAL REVIEW: The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for reconsideration of his earlier request to upgrade his general discharge under honorable conditions to honorable. a. He suffered overt racism, harassment, and reprisal from his white commanding officer, [Captain (CPT/O-3)] six months before his discharge at Fort Bragg, NC in 1988. The applicant asserts that CPT set the applicant up by tampering with both his and another Soldier’s urine sample during their drug test. b. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * Photocopy of his DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 12 September 1994 * Character Reference Letter, dated 28 May 2021 c. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. d. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. e. JLV does not contain any BH diagnoses. The applicant is 50% service connected. He is not service connected for any BH disorder. f. There does not appear to be any evidence in available records that demonstrate the applicant was a victim of racism, harassment or reprisals from command. There does not appear any evidence in available records that indicate that his urine sample was tampered with. g. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any BH mitigating diagnosis. The applicant met retention standards at the time of discharge. The applicant has a service connection of 50%. Under liberal guidance, the applicant does not have any BH diagnosis that would mitigate his drug usage. h. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) No. The applicant does not contend any BH issue that resulted in drug usage. The applicant denies using cocaine. (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A- After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any BH mitigating diagnosis. The applicant met retention standards at the time of discharge. The applicant has a service connection of 50%. Under liberal guidance, the applicant does not have any BH diagnosis that would mitigate his drug usage. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 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 behavioral health diagnosis and/or post-service achievements 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. 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 to amend the decision of the ABCMR set forth in Docket Number AR1999029427 on 11 February 2000. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel, it provides: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. The Secretary of the Army, on a case–by–case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the soldier is separated by reason of selected changes in service obligation, convenience of the Government and Secretarial plenary authority. d. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. e. Chapter 9 of this regulation provides the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. 3. Army Regulation 600-85, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), prescribed 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, any Soldiers who lacked the potential for continued military service, or who had failed to adequately participate in, or to successfully complete rehabilitation, would be separated. (1) 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. (2) 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. Per Manual for Courts-Martial, Article 112a, Uniform Code of Military Justice –– (Wrongful use, possession, etc., of controlled substances) included a punitive discharge. 5. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. 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 DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. 7. 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) AR20210016462 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1