IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220006211 APPLICANT REQUESTS: upgrade of his dishonorable discharge to under honorable conditions (general), and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 was arrested by the West German police and the U.S. military police for a heroin smuggling ring. He was with a group of Soldiers and was unaware of what was transpiring. He got charged for a drug sale that he was not actively participating in. He was in the wrong place at the wrong time. He never used drugs nor had a criminal record. This traumatic event caused him to go into a deep depression. He became homeless and an alcoholic for over 42 years. b. He now has stable housing and work. Due to the recent increase in the economy, he can no longer afford the high cost of living without subsidized housing through the Veteran Administration. He is not a criminal nor a bad person. 3. On his DD Form 149, the applicant notes other mental health issues are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 10 January 1978, for a 3-year service obligation. Upon completion of his training, he was awarded occupational specialty 54E (Chemical Operations Specialist). He was assigned to a unit in Germany and reported on or about 22 August 1978. 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * 8 November 1978, for being disrespectful in language to his superior noncommissioned officer (NCO), on or about 31 October 1978, his punishment included reduction to E-1 (suspended) * 26 December 1978, for disobeying a lawful order given by commissioned officer by possessing a one-half gallon of rum in the billets, on or about 23 December 1978, his punishment included a suspended reduction to E-1 6. The applicant’s commander on 8 February 1979 initiated actions to bar his reenlistment. He cited the applicant's serious drinking problem which was most likely caused by his immaturity and inability to adapt to Army life and his NJPs. He referred the applicant to the Alcohol Abuse Program. The applicant acknowledged receipt and declined to submit a statement. 7. The applicant's bar to reenlistment was approved on 13 February 1979. 8. The applicant's record contains an Alcohol and Drug Abuse Prevention Control Program (ADAPCP) progress report, which notes the applicant was command referred on 1 February 1979 for his alcoholism and excessive drinking. 9. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on 27 March 1979, for participating in a breach of peace by breaking glasses and spitting on the floor disturbing the tranquility at the NCO club, on or about 23 March 1979. His punishment included reduction to the grade of private/E-2. 10. The applicant’s record contains a partial DA Form 3647-1 (Clinical Record Cover Sheet) dated 18 April 1979, which indicates he diagnosed with alcoholism – habitual excessive drinking. 11. On 31 May 1979 the ADAPCP Senior Counselor, notified the commander of the applicant's performance in the ADAPCP. A synopsis of his rehabilitation activities shows he missed 3 of 11 counseling sessions and his performance was borderline. His most recent incident and dismissal from the extended care facility may indicate that he had low rehabilitative potential and may be considered for discharge. The commander acknowledged receipt of the document on 11 June 1979. 12. The applicant had a 120-day ADAPCP follow-up with a due date of 1 June 1979, which showed he had command consultation, group counseling/therapy and individual counseling/therapy since the last report. The remarks noted that he had fair to unsatisfactory efficiency, conduct, and progress. He was pending separation for failure to make a substantial effort towards rehabilitation. 13. The applicant had a 180-day ADAPCP follow-up with a due date of 31 July 1979, which showed he had command consultation, group counseling/therapy and individual counseling/therapy since the last report. The remarks noted that he had fair to unsatisfactory efficiency, conduct, and progress. 14. Before a general court-martial on 29 October 1979, at Wurzburg, Germany the applicant was found guilty of wrongfully selling 0.11 grams, more or less of heroin on or about 28 April 1979. His sentenced included confinement at hard labor for three and a half years, reduction to the grade of E-1, forfeiture of all pay and allowances, and to be separated from the service with a dishonorable discharge. The sentence was approved on 10 December 1979, and the record of trial was forwarded for appellate review. 15. The applicant had a 180-day ADAPCP follow-up with a due date of 27 January 1980, which showed he had group counseling/therapy and individual counseling/therapy since the last report. The remarks noted that he had good efficiency, conduct, and progress. 16. The U.S. Army Court of Military Review affirmed the findings and sentence on 14 February 1980. 17. General Court-Martial Order Number 322, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 27 May 1980 noted that the applicant's sentence had finally been affirmed and ordered the discharge duly executed. 18. The applicant was discharged on10 September 1980 pursuant to his court-martial sentence under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as dishonorable. He was credited with completing 1 year, 9 months, and 19 days of net active service with 318 days of lost time. 19. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 20. Published guidance to the Boards for Correction of Military/Navy Records (BCM/NR) clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 21. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) requesting an upgrade of his dishonorable discharge to under honorable conditions (general). He contends he had a mental health condition, which mitigates his misconduct. 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 in the Regular Army on 10 January 1978; 2) The applicant accepted non-judicial punishment (NJP) between November and December 1978 for disrespectful language towards and NCO and for disobeying an order from a commissioned officer; 3) On 08 February 1979, actions were initiated to bar his reenlistment because of his misconduct associated with severe alcohol abuse. He was referred to the Alcohol Abuse Program; 4) On 29 October 1979, the applicant was found guilty of selling heroin. He was sentenced to confinement at hard labor, reduction to E-1, forfeiture of all pay, and to be separated from the service with a dishonorable discharge; 5) The applicant was discharged on 10 September 1980, and his service was characterized as dishonorable. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant asserts he was experiencing a mental health condition which mitigates his misconduct during his active service. The applicant was diagnosed with alcoholism on 18 April 1979, and he was command referred into the Army’s Alcohol and Drug Abuse Prevention Control Program (ADAPCP). The applicant demonstrated little improvement in the program, and he was considered for discharge due to his low rehabilitative potential on 31 May 1979. There were no other behavioral health records available for the applicant, and he was not diagnosed with any other behavioral health condition beyond alcoholism. A review of JLV provided evidence the applicant has been assisted by the VA for homelessness. The applicant also asserts that he has been experiencing depression since leaving active service, but he did not provide any supportive civilian medical documentation. The applicant has no service-connected disabilities. e. Based on the available information, it is the opinion of the Agency BH Advisor there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing a mental health condition which contributed to his misconduct. B. Did the condition exist or experience occur during military service? Yes, the applicant contends his mental health condition occurred while on active service. C. Does the condition experience actually excuse or mitigate the discharge? No, there is no evidence beyond self-report that the applicant was experiencing a mental health condition beyond alcohol abuse while on active service. In addition, the applicant was found guilty of selling heroin, and not solely wrongful usage. There is no nexus between his report of a mental health condition and this type of misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae of his report of a mental health condition; 2) it does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends a mental health condition resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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 advising official finding there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Evidence shows no nexus between his report of a mental health condition and this type of misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae of his report of a mental health condition; 2) it does not affect one’s ability to distinguish right from wrong and act in accordance with the right. 2. The Board determined based on the evidence in the record there is no evidence beyond self-report that the applicant was experiencing a mental health condition beyond alcohol abuse while on active service. The applicant provided no post service achievements or character letters of support for the Board to consider as clemency. ABCMR is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. 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. Therefore, relief was denied. 3. 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. 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. Title 10, USC, 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. 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. prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 11, paragraph 11-1, states an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. b. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a court-martial conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 6. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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. 7. 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 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. 8. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20220006211 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1