IN THE CASE OF: BOARD DATE: 24 February 2023 DOCKET NUMBER: AR20220007391 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his under honorable conditions (general) discharge to either a medical discharge or an honorable discharge. He also requests a personal appearance. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214, Armed Forces of the United States Report of Transfer or Discharge * Personal Statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20200008607, on 27 May 2021. 2. The applicant states he was not given proper medical examination at the time. In short, the Army did not follow proper procedure in discharging him, did not document or provide medical treatment for his addiction, and consequently his general discharge was entered erroneously and should be upgraded to a medical discharge or honorable discharge. a. He enlisted in the Army on 10 May 1972 and after completing basic he was deployed to the 28th Ordinance Company, in Wackenheim, Germany. Shortly after his arrival, he got involved with a group of soldiers in his unit that were using drugs daily, and he also started using drugs. He suddenly found himself becoming addicted to drugs and not reporting to work. By 1973, he became addicted to drugs, using cocaine, heroin, and smoking hash. Buying drugs became his job. Instead of reporting to work, he was using drugs 24/7. He no longer had a desire to work. He cannot remember the names of the leaders of his unit including the captain, first Sargent, Staff Sargent, but they were aware that he and others in his unit were using drugs. They did nothing to offer help or assist in getting him treatment for his addiction. In fact, there were two other soldiers in his unit who were part of this group who battled addiction during that time, one soldier's last name was , and he is from , and there was another from, but he cannot remember his name. b. The Army regulations outline a series of steps that must be taken pursuant to discharge determination: (1) The soldier must be formally counseled in writing at least once prior to initiation of chapter action. The counseling must include: the counseling; the fact that separation action may be initiated if the behavior continues, the type of discharge that could result from possible separation action and the effect of each. The soldier should be given a reasonable time to correct his deficiencies (paragraph 1-18b, AR 635-200). (Emphasis added) (2) The soldier must be transferred once with at least two months of duty in each unit between battalion size and larger units. The separation authority can waive this transfer requirement if further duty by the soldier would cause disciplinary problems or if the member is resisting rehabilitative efforts (see Para. 1-16(c), AR 635-200). (Emphasis added). His service record does not contain any information about pre- discharge counseling because he was not given any. He was also not transferred to a different unit or given a reasonable opportunity to change his behavior. In his case, this would have been a referral to treatment documenting his addiction and providing him an opportunity to improve. This never happened as his service records indicate. c. Although his pre-discharge physical was done pursuant to a Chapter 13 discharge on 11 September 1973, the physical is not accurate because it did not reflect his addiction. Instead, his records suggested that he was medically fit for duty, when it was clear that he was not. This is the underlying cause of the discharge error that needs to be corrected. In October 1973, the three of them, he, and the soldier (both African American) were given general discharges for not reporting to work and for being unwilling to work. d. As he reflects on it after all these years, he wonders why they were not given treatment for their drug addition, even though he understands it was common practice then and remains so today. More importantly, he understands that other soldiers on base during that time received discharges because of drug addiction. After returning to the United States in late 1973, he immediately began to get in trouble with the law. He ended up serving about six months in jail for stealing, instead if prison time which he could have served longer, but he is thankful he did not. Not long after that episode, he overcame his drug addiction, but then he started having problems sleeping (still to this day). He suffered from migraine headaches and had trouble holding a job. e. In 1975, he dedicated his life to God and moved to with his family (now ex-wife) and infant daughter. In he was able to thrive, holding down a steady job the entire time and he even stayed with one company for five years, becoming one of the top salesmen. He became more involved in the church and became a minister, and they welcomed a baby boy to their family in 1977. In total, he has lived in for 13 years, until towards the end, he had a relapse. Since relapsing, he has suffered with various effects of his initial drug addiction that began in the Army including COPD and sleep apnea, both of which have been diagnosed in recent years by providers within the Department of Veterans Affairs. Despite suffering from these conditions that originated during his Army service and stem from the fact that he did not receive treatment for his drug addiction as was common then, thankfully today, he is still working and maintaining his family. He is hopeful the Board considers the information he has laid out and determines that his discharge warrants on upgrade to medical or honorable based on the failure of the Army to follow procedure and to document and treat his addiction. 2. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 10 May 1972. He was assigned to Fort Polk, LA for initial entry training. b. On 27 May 1972, while still in training, he accepted nonjudicial punishment (NJP) under Article 15 for failing to obey a lawful order from a superior noncommissioned officer, on or about 27 May 1972. His punishment consisted of a forfeiture of pay. c. Following completion of training and award of military occupational specialty 63B, Wheel Vehicle Mechanic, he proceeded on a permanent change of statin to Germany on or about 10 October 1972. d. On 27 July 1972, the applicant’s immediate commander counseled him regarding his habit of shirking his duties. Specifically, his superiors had reported numerous occasions upon which the applicant failed to follow instructions and obey orders. He had also absented himself from his designated place of duty. The commander advised him that continued behavior of a similar nature could result in the initiation of actions to eliminate the applicant from the Army as unfit or unsuitable for continued service under the provisions of AR 635-200 (Personnel Separations). The commander also advised him that such action may result in the issuance of an Undesirable Discharge Certificate with resulting loss of virtually all Veterans’ benefits and the suffering of substantial prejudice in obtaining civilian employment. The commander encouraged him to adjust his conduct and efficiency accordingly. The counseling form indicates the applicant refused to acknowledge receipt of the counseling by signing the form. e. On 30 July 1973, the applicant accepted NJP under Article 15 for failing to obey a lawful order from a superior noncommissioned officer; and absenting himself from his designated place of duty, on or about 13 July 1973. His punishment consisted of reduction to private/E-1 and forfeiture of pay. f. On 3 August 1973, the applicant’s immediate commander counseled him regarding his continue habit of shirking his duties. Specifically, the applicant did not cooperate, failed to obey even the simplest orders, such as to sweep a hallway and he continued to absent himself from his place of duty. The commander advised him that continued behavior of a similar nature may result in the initiation of action to eliminate the applicant from the Army as unfit or unsuitable for continued service under AR 635- 200. The counseling form indicates the applicant refused to acknowledge receipt of the counseling by signing the form. g. On 3 August 1973, the applicant again accepted NJP under Article 15 for failing to obey a lawful order from a superior noncommissioned officer on 16 and 20 July 1973; and for absenting himself from his designated place of duty, on or about 27 July 1973. His punishment included forfeiture of pay and restriction. h. On 24 August 1973, the applicant’s immediate commander counseled him regarding certain acts of misconduct and inefficiency. Specifically, the applicant’s behavior had failed to improve after having been counseled on numerous occasions by various superiors. The applicant continued to shirk his responsibilities and duties by absenting himself from his place of duty. Again, the commander advised him that continued behavior of a similar nature may result in the initiation of separation action for unfitness or unsuitability for continued service. The counseling form indicates the applicant refused to acknowledge receipt of the counseling by signing the form. i. On 24 August 1973, the applicant accepted NJP under Article 15 for being absent without leave (AWOL) from on or about 20 August 1973, until 23 August 1973. His punishment consisted of forfeiture of ay and extra duty. j. on 7 September 1973, the applicant's commander notified the applicant of his intent to initiate actions to separate the applicant from service under the provisions of AR 635-200, paragraph 13-2b, for unsuitability. The commander advised the applicant of the rights available to him to include consulting with legal counsel, and the effects of a waiver of his rights. k. On 11 September 1973, the applicant underwent a pre-separation medical examination. On his Standard Form (SF) 93 (Report of Medical History), rendered by himself, he declared himself to be in good health and made no indication that he was suffering from an addiction to drugs. His Report of Medical Examination, rendered by a physician, shows his medical condition was determined to be normal and made no mention of an addiction to drugs. The applicant was found to be qualified for separation under AR 635-200, Chapter 13. l. The applicant also underwent a mental status evaluation. His A DA Form 3822-R (Report of Mental Status Evaluation) shows he was psychiatrically cleared to participate in separation board proceedings. It was also determined he met the retention standards prescribed by AR 40-501 (Army Medical Standards), Chapter 3. m. The applicant's commander formally recommended that the applicant be required to appear before a board of officers convened under the provisions of AR 635- 200 for the purpose of determining whether he should be discharged for unsuitability before the expiration of his term of service. The specific reason cited was the applicant’s habits and traits of character manifested by repeated commission of petty offences and habitual shirking. The commander opined: (1) The applicant’s overt displays of disrespect identified him as a potential cause of trouble in his unit. He noted the applicant resisted all efforts made toward rehabilitation and stated the applicant would be a problem regardless of unit of assignment. The commander concluded retention in the military would be useless to both the applicant and the unit to which he was assigned. (2) During his tenure, the applicant had been assigned to various duty assignments commensurate with his training and ability and had served under different superior officers and NCOs. In each instance, his performance had been less than satisfactory, and his military supervisors agreed that further rehabilitation efforts would be useless. His conduct and efficiency ratings had declined from "Fair" to "Unsatisfactory." n. On 12 October 1973, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unsuitability. He waived consideration of his case by a board of officers and personal appearance before a board of officers. He elected not to submit statements in his own behalf and waived his rights to be represented by counsel and have a psychiatric examination. He acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life in the event a General Discharge under honorable conditions was issued to him. He also understood he may only receive a discharge under honorable conditions since he was recommended for separation for unsuitability pursuant to paragraph 13-5a(3)(b). o. On 15 October 1973, the separation authority waived a rehabilitative transfer of the applicant to another unit under the provisions and approved the applicant's discharge under the provisions of AR 635-200, Chapter 13; and directed the issuance of a General Discharge Certificate. p. The applicant was accordingly discharged on 23 October 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under AR 635-200, paragraph 13-5(b)(3) for unsuitability (Apathy - lack of appropriate interest), defective attitudes, and inability to expend effort constructively) and his service was characterized as general, under honorable conditions., Separation Code 46A and Reentry Code 3B. He completed 1 year, 5 months, and 10 days of active service. He was awarded or authorized the National Defense Service Medal and the Sharpshooter Badge with Rifle Bar. 3. On 27 May 2021, the Board considered his case for an upgrade of the character of service and/or change the reason for separation to medical. Prior to adjudicating his case, the Army Review Boards Agency Behavioral Health (BH) Advisor was asked to review this case. a. After reviewing the available information and in accordance with the 3 September 2014 Hagel Liberal Consideration Memorandum and the 25 August 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating BH diagnoses. Even if the applicant had a Substance Abuse/ Dependence diagnosis, there is no evidence that this usage was related to an underlying BH disorder. The applicant in his own narrative states: “Shortly after his arrival, he got involved with a group of Soldiers in his unit that were using drugs on a daily basis, and he also started using. He suddenly found himself becoming addicted to drugs and not reporting for work. By 1973, he became addicted to drugs such as cocaine, heroin, and hashish. Buying drugs became his job. He no longer had a desire to work. Instead of reporting to work, he was using drugs all day, every day. b. With regards to military medical disability/retirement, the Army has a process that begins with entry into the disability evaluation system (DES). Referral to this system requires a designation of unfitness before an individual can be separated from the military because of an injury or medical condition. In the applicant’s case, there is no indication that he had an unfitting medical, neurological or behavioral health condition while on active duty as evidenced by the lack of : 1) a permanent physical profile for physical or psychological impairment; 2) a diagnosis of a medical, neurological or behavioral health condition that failed medical retention standards; 3) a diagnosis of a disabling medical, neurological or behavioral health condition that rendered the applicant unable to perform the duties required of his MOS or military grade; 4) a medical examination that warranted his entry into the disability evaluation system. c. In conclusion, after considering all the available medical documentation, it is the opinion of the Agency psychiatrist that there is insufficient evidence to warrant a referral of the applicant’s record to IDES (Integrated Disability Evaluation System) for consideration of military medical disability/retirement. The applicant met retention standards at the time of discharge. The applicant does not have a service connection. Under liberal guidance, the applicant does not have any mitigating factor for his unsatisfactory performance. From a behavioral health perspective, no further relief is warranted c. After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the short term of honorable service completed prior to misconduct leading to the applicant’s separation, as well as the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service and/or narrative reason for separation. 4. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 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. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. a. The evidence shows the applicant’s chain of command counseled him multiple times, by various members of his chin of command about his apathy, misconduct, and inefficiency but he did not respond to counseling or rehabilitative transfer. As a result, his chain of command initiated separation action against him. He was discharged for unsuitability (Apathy - lack of appropriate interest, defective attitudes, and inability to expend effort constructively) and his service was characterized as general, under honorable conditions. He completed 1 year, 5 months, and 10 days of active service. b. The applicant claims substance abuse. However, he provides no evidence that this was the reason for his separation. A medical officer had reviewed his case and determined the applicant does not have any mitigating behavioral health diagnoses. Even he had a Substance Abuse/ Dependence diagnosis, there is no evidence that this usage was related to an underlying behavioral health disorder. The Board agreed with the behavioral health advisor’s finding that any psychiatric mitigation at the time of service/discharge does not outweigh the grave nature of the offense and therefore mitigation is not warranted. c. Regarding medical disability/separation, the Board also agreed that there is insufficient evidence to warrant a referral of the applicant’s record to IDES (Integrated Disability Evaluation System) for consideration of military medical separation. The applicant met retention standards at the time of discharge. 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 Dockets Number AR20200008607, on 27 May 2021. 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 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. Chapter 13 in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. Paragraph 13-5b provided for the separation of Soldiers for unsuitability. (1) Sub-paragraph (1) applied to those Soldiers being separated for inaptitude. (2) Sub-paragraph (2) applied to those Soldiers being separated for character and behavior disorders [later deemed personality disorders]. (3) Sub-paragraph (3) applied to those Soldiers being separated for apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. 2. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, Boards 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) AR20220007391 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1