IN THE CASE OF: BOARD DATE: 21 November 2022 DOCKET NUMBER: AR20220004203 APPLICANT REQUESTS: . upgrade of his general discharge under honorable conditions to honorable . personal appearance before the Board 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, United States Code, section 1552(b); 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: a. He is requesting upgrade of his discharge to honorable. During his active service, he encountered a severe drug and alcohol addiction, which significantly affected him mentally and physically and contributed to his negligent behavior and misconduct. Due to the stress and lack of awareness, he was unable to receive the necessary treatment. b. During his stint in the military, he was extremely productive. It was unfortunate that when the pressures of taking on the responsibility of a new marriage and kids, combined with his service duties, that his stress increased and he sought to self-medicate as a remedy. c. Since his discharge, in his years as a civilian, he underwent the treatment needed and has now been drug and alcohol free for 18 years. He has successfully completed over 6 years of continual education and holds a license in chemical dependency counseling. He is the president of a successful profit and non-profit youth organization and the delay in his application submission is solely due to timing. He has been writing books as a nationally, White House recognized inspirational speaker and time simply got away from him. 3. A Standard Form 88 (Report of Medical Examination) shows the applicant underwent medical examination on 26 April 1986 for the purpose of U.S. Army Reserve (USAR) enlistment and was found qualified for enlistment with a physical profile rating of “1” in all factors.. 4. The applicant enlisted in the USAR and his initial DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served on active duty for Initial Active Duty for Training (IADT) as a member of the USAR from 10 September 1986 through 11 February 1987. 5. The applicant requested USAR discharge for the purpose of Regular Army enlistment and his second DD Form 214 shows his entrance on active duty in the Regular Army to have been on 24 September 1987. 6. An Army and Air Force Exchange Service Dishonored Check Notification, dated 6 June 1988, shows the applicant’s check to the Fort Meade Main Post Exchange, dated 18 May 1988 was returned on 2 June 1988 for insufficient funds. 7. A DA Form 2627 (Record of Proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ)), shows the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on 28 July 1988, for absenting himself from his place of duty without authority from 15 July 1988 until 19 July 1988. 8. Multiple DA Forms 4856 (General Counseling Form) show the applicant received counseling on the following dates under the following circumstances: . on 9 September 1988, for repeatedly arriving late to physical training (PT) formations . on 14 October 1988, for failing to appear for scheduled PT . on 28 November 1988, for failing to report to his place of duty without authority 9. A second DA Form 2627 shows the applicant again accepted NJP under Article 15 of the UCMJ on 6 December 1988 for being absent from duty without authority on 28 November 1988. Among his imposed punishments was reduction in grade to E-2. 10. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), shows an adverse action FLAG was initiated against the applicant on 30 January 1989. 11. A DA Form 3975 (Military Police (MP) Report), dated 10 February 1989, shows on 31 December 1988, a complaint was lodged against the applicant of having wrongfully possessed and used a controlled substance (cocaine) in an on-post latrine. Preliminary investigation by the Criminal Investigation Command (CID) revealed the applicant admitted to unknowingly smoking a cigarette laced with cocaine while on leave. On 4 January 1989, a urinalysis test was administered and the result was positive for the presence of cocaine. 12. A DA Form 4187 (Personnel Action), shows the applicant was reduced in grade from E-2 to E-1 effective 16 February 1989, due to recent NJP under the UCMJ. The corresponding DA Form 2627 is not in the applicant’s available records for review. 13. On 22 February 1989, the applicant was notified by his immediate commander of his initiation of action to separate him with a general discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for commission of a serious offense. The reason for the proposed action was abuse of cocaine between 27 December 1988 and 4 January 1989. The applicant was advised of his right to consult with counsel and submit a written statement in his behalf. 14. In an undated memorandum, the applicant acknowledged having been advised by consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14. The applicant requested representation by consulting counsel and declined to submit statements in his own behalf. He also acknowledged understanding he may expect to encounter substantial prejudice in civilian life if he were issued a general discharge under honorable conditions. 15. A memorandum from the MP Director, Personnel and Community Activities, through the applicant’s group and company, dated 28 February 1989, shows the following: a. It advised the applicant of reported information that he had been involved in a domestic disturbance at his quarters on 16 February 1989, which necessitated the intervention by MPs. The applicant was advised that his apparent failure to properly manage his domestic affairs was sufficient to jeopardize his privileges of occupying family housing on the Fort George G. Meade installation. He was cautioned that any future incidents of this nature may result in an order for him to vacate his quarters and move off post. b. The applicant was also advised of a number of organizations on post that help individuals solve problems that lead to marital discord, such as the Army Community Service, Family Life Center, Army Emergency Relief, Community Counseling Center, Community Mental Health Activity, the Legal Assistance Office, and the Chaplain of his choice. He was urged to take advantage of these services. 16. A DA Form 4126-R (Bar to Reenlistment Certificate), dated 28 February 1989, shows the applicant was advised his commander’s recommended his bar to reenlistment for the below reasons, he signed the form indicating he did not desire to submit a statement in his own behalf, and he would not appeal the approved bar to reenlistment: . Rights Warning Procedure/Waiver Certificate on 12 May 1988 for misuse of a Government vehicle . Notice of dishonored check on 6 June 1988 . Armed Forces Traffic Ticket on 17 July 1988 . Company Grade NJP under UCMJ, Article 15 on 28 July 1988, for being absent from duty . Company Grade NJP under UCMJ, Article 15 on 6 December 1988, for being absent from duty . Field Grade NJP under UCMJ, Article 15 on 16 February 1989, for use of a controlled substance . multiple General Counseling statements for failure to appear for PT 17. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent mental status evaluation on 1 March 1989, at the request of his command. a. The applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. b. There was no evidence of a mental disorder which would warrant his disposition through medical channels. The applicant was experiencing severe marital and occupational problems and was psychiatrically cleared for any administrative action deemed appropriate by the command. 18. A second Standard Form 88 shows the applicant underwent medical examination on 8 March 1989 for the purpose of administrative discharge and was found qualified for administrative discharge. His physical profile rating is not annotated on the form. 19. An undated memorandum shows the separation action underwent legal review by the office of the Staff Judge Advocate and was found to be legally sufficient. 20. On 13 April 1989, the approval authority directed the applicant’s general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14. 21. The applicant’s DD Form 214 shows he was given a general discharge under honorable conditions on 10 May 1989, under the provisions of Army Regulation 635-200, chapter 14, due to misconduct – abuse of illegal drugs. He was credited with 1 year, 7 months, and 17 days of net active service and 11 months and 22 days of total prior inactive service. 22. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions, general, discharge characterization to honorable. He contends his misconduct was associated with stress, that affected him mentally and physically, resulting in alcohol and drug addiction. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 24 September 1987; 2) He received NJP under provisions of the UCMJ, Article 15 on two occasions for being AWOL (28 July 1988, and 28 November 1988), and one occasion for submitting a positive urine sample (16 February 1989); 3) He received a Bar to Reenlistment on 28 February 1989 for a host of infractions, to include writing dishonored checks, misuse of a government vehicle, use of a controlled substance, and being AWOL; 4) He was discharged on 10 May 1989 under provisions of AR 635-200, Chapter 14-12c, serious misconduct – abuse of illegal drugs. c. Military medical records reviewed included 1) DA Form 3822-R (Report of Mental Status Evaluation) dated 1 March 1989, which showed the applicant did not have a mental disorder requiring separation through military medical channels and clearing him for any administrative action deemed appropriate by command; 2) Standard Form 88 (Report of Medical Examination) dated 8 March 1989, which showed the applicant medically cleared for administrative separation. No other military medical records were available for review. A review of the VA electronic medical record (JLV) was void of any BH-related care history; however, he does have a history of medical treatment at the Cincinnati OH VA from June 2006 to the present for various medical conditions; none of which are service-connected. The applicant provided no other documentation to support a history of BH-related treatment. d. The applicant contends that during his active-duty service he developed an addiction to alcohol and drugs, which affected him mentally and physically, contributing his negligent behavior. e. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant did not have a condition or experience that mitigated his misconduct. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? No. Records are void of any history of BH-diagnosis or BH-related treatment during or after active-duty service. And though the applicant self-asserts a history of alcohol and drug addiction associated with stress experienced during the military. Substance abuse/addition in absence of a comorbid BH-condition is not considered a mitigating factor under Liberal Consideration guidance. 2. Did the condition exist or experience occur during military service? N/A 3. Does the condition or experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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 a behavioral health diagnosis, 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. 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, United States Code, 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 Army Board for Correction of Military Records (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. 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, 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, on those conditions or experiences. 3. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 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, use of illegal drugs, and convictions by civil authorities. 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 for a Soldier discharged under this chapter. 5. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//