IN THE CASE OF: BOARD DATE: 25 April 2023 DOCKET NUMBER: AR20220010246 APPLICANT REQUESTS: an upgrade of the character of his service from under other than honorable conditions (UOTHC) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with six-page * DD Form 261, Report of Investigation-LOD and Misconduct Status with allied documents * National Personnel Records Center Letter * Miscellaneous service records (84 pages) - enlistment contracts, Record of Proceedings Under Article 15, Uniform Code of Military Justice, military orders, medical and dental records FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in effect: a. In the early morning hours of 22 July 1987, he approached the Charge of Quarters in his barracks and asked to make an entry into the log wherein he asked to be referred to substance abuse counseling. He was allowed to do so. b. At first formation, a few hours later that same morning, the company commander. asked that anyone with substance abuse issues step to the rear of the formation. He did so and was sent to the Military Police (MP) station for an alcohol test. He subsequently received nonjudicial punishment (NJP) under the provisions of Article 15, (Uniform Code of Military Justice (UCMJ) for being drunk on duty. He was not evaluated by medical personnel at that time. At this point it became clear to him that asking for help in this manner had been an error on his part. b. His reason for seeking help in this manner was, that in one brief moment of clarity that addicts are so rarely afforded, he saw his disease progression with absolute clarity, and he was fearful that if he did not act immediately, he would lose the courage to do so. He had started to come to terms with his alcoholism while still stationed in Germany. It had cost him an early promotion to sergeant/E-5. As his apparently chronic alcoholic condition continued to deteriorate, due to a lack of treatment, one of several alcohol related incidents was a motor vehicle accident resulting in hospitalization. The subsequent Lin of Duty (LOD) accident investigation revealed the systemic failure of the drug and alcohol program at to provide proper and timely medical attention. c. He contends the LOD investigation was done by an objective third party at the Battalion level. His investigation was thorough and fair. It clearly and correctly outlines that he had voluntarily sought help for his substance abuse issues and for various reasons been denied access to treatment as an active duty member. Several of the interviewees mentioned that he had turned himself in for substance abuse treatment. This differs slightly from the commander's statement which insinuates that he was caught. This investigator clearly saw through this slight inaccuracy. The drug and alcohol treatment professionals interviewed clearly lean toward a conclusion of him being a chronic alcoholic or having the potential to become one. The levels of alcohol in his system when tested seem to point toward chronic alcoholism also. He believes therefore the investigator included them in the report. d. Even after this investigation reached its conclusion, no substance abuse counseling or treatment was offered. Several noncommissioned officers (NCO) inferred that he was being made an example of at the time. Only after it became clear that no treatment or counseling for substance abuse was going to be made available did he, at the urging of, and with the help of responsible family members (several of them military veterans), go absent without leave (AWOL) and return to his home of record. He contends that any responsible person in the similar situation where care was unavailable would encourage their loved one to do the same. He has been clean since that day. Long term sobriety came later. e. After consulting a legal professional in military law and an appropriate amount of time passing, his "apprehension" was arranged by a good friend's brother. The State Police took him into custody and transferred him to military control. f. After transfer, the Military Police (MP)'s at Fort Dix, NJ failed to pick him up at the airport. He had to seek out a State trooper for transfer to the MP station at Fort Dix, NJ; so technically he turned himself in. He remembers it as a very welcome, humorous incident in the midst of a very difficult and trying time. g. At his out-processing he was offered a bad conduct discharge (BCD) under other than honorable conditions (UOTHC) in lieu of court martial. Under the circumstances and having no documentation to support his claims of having sought and been denied medical treatment, he found this acceptable. He had lost three pay grades and much of his income to forfeiture of pay due to several alcohol related incidents while waiting and hoping for promised treatment that never materialized. He had a good civilian job by this time and was the sole income provider for his family of four with a new baby on the way. This closed the chapter in his life of voluntary military service. h. Recently he discovered the LOD investigation which supports his claims of having been denied proper and timely medical care while on active duty, which is one reason for now seeking a discharge upgrade. Because, to his knowledge, the systemic failure of the drug and alcohol program at Fort Know, KY to provide proper and timely medical care, was not a consideration at the time of his discharge. i. He did everything a Soldier could be expected to uphold, including voluntarily seeking substance abuse treatment. He just became too ill to effectively serve. He thinks it's very likely that he could have fulfilled his obligation to the service had he been afforded proper and timely medical care. j. The applicant further states he is remorseful. He details his post service achievements, steps to sobriety, employment history, education, training, and volunteer efforts. 3. The applicant enlisted in the Regular Army on 15 June 1984. He served as a combat engineer. The highest grade he held was specialist/E-4. 4. The applicant's record contains documents related to his participation in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). a. A Client Progress Report, 27 October 1987, which shows the applicant successfully completed Track I and was returned to his unit with a recommendation of retention on active duty. b. A Client Intake/Screening Record, date not legible. This form shows that the applicant was command referred to Track II for alcohol abuse. This form further shows that at the time of his enrollment the applicant had two periods of AWOL, one arrest, one conviction, two instances of NJP under Article 15 of the UCMJ, and one court- martial. 5. The applicant provides - a. Medical Record, for treatment from 31 October 1987 to 2 November 1987, which shows the applicant was involved in a motor vehicle accident on 31 October 1987. He suffered a closed head injury and laceration to his forehead. His ethanol level was 0.256. b. Uniform Police Traffic Accident Report, 31 October 1987, wherein the applicant reported having fallen asleep prior to the accident. c. An extract from Clinical Diagnosis and Management, Table 17-14, Influence of Acute Ethanol ingestion on ethanol levels and behavior. d. Numerous sworn statements to include a statement from Sergeant , 23 December 1987. This individual stated, in effect, the applicant was going in the direction of becoming an alcoholic and he had recommended him for counseling; however, the applicant had self-referred five months earlier, but someone lost the paperwork. Another sworn statement from Private , states the applicant tried to get help in July 1987. The applicant entered the following handwritten statement on the commander's sworn statement "I was sent for testing after I referred myself. The order of events here is inaccurate." 6. A DD Form 261, 1 February 1988, which shows the injury the applicant sustained in a motor vehicle accident on 31 October 1987 were found to be NOT in the LOD -due to his own misconduct. The investigating officer included the following information: [The applicant] sustained his injuries to himself without regard for personal safety while driving his vehicle in an unfit condition; therefore, my findings are "not in Line of Duty -- Due to Own Misconduct... I must caveat my findings with my observation that the Drug and Alcohol Program at Fort Knox systemically failed to provide [the applicant] with proper and timely medical care prior to this accident. The Statement of CPT indicates that [the applicant] was initially referred to the ADACP on 23 March 1987. The statements of SGT and SGT indicate that [the applicant] has yet to begin individual treatment for his apparent alcoholism. The delay was caused by a combination of duty commitments and a change in ADACP personnel. While not an excuse for his conduct pertaining to this investigation, I feel that had [the applicant] received the medical attention regulated by the ADACP, this incident may never have occurred. Ultimately though, [the applicant] should have asserted his right to treatment. 7. Court-martial charges were preferred against the applicant on 3 May 1988, for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from his unit from on or about 8 March 1988 to on or about 24 March 1988; and from on or about 2 April 1988 to unknow date. 8. A Personnel Control Facility Interview Sheet, 26 August 1988, shows the applicant reported that he requested to be referred to drug and alcohol counseling prior to going AWOL. He went AWOL to deal with his alcohol problem. He further indicated that he did not desire a separation physical. 9. On 31 August 1988, after consulting with legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200, Personnel Separations – Enlisted Personnel, Chapter 10, for the good of the service. a. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran’s Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected not to submit a statement in his own behalf. 10. On 6 October 1988, the separation authority approved the applicant's request for discharge, under the provisions of AR 635-200, Chapter 10, for the good of the service and directed the issuance of an UOTHC discharge. 11. The applicant was discharged on 9 November 1988 in accordance with separation authority’s directive. His DD Form 214 shows he was discharged in the lowest enlisted grade and his service was characterized as UOTHC, with a separation code of "KFS" and the reentry (RE) codes, "RE 3-3B-3C." He completed 3 years, 7 months, and 28 days of net active service, with lost time from 8 March 1988 to 23 March 1988; and from 2 April 1988 to 23 August 1988. 12. Discharges under the provisions of Army Regulation 635-200, Chapter 10, are voluntary requests for discharge, in lieu of trial by court-martial. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 14. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 9 November 1988 discharge characterized as under other than honorable conditions. He states he went absent without leave (AWOL) to obtain treatment for his alcoholism after he was denied treatment by the Army. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 2 October 1984 and was discharged under other than honorable conditions on 9 September 1988 under the separation authority provided by chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (15 April 1985): Discharge for the Good of the Service. c. The applicant states in his self-authored letter: “In the early morning hours of July 22, 1987, I approached the C.Q. {charge of quarters} of my barracks and asked to make an entry into the C.Q. log asking for referral to substance abuse counseling. He allowed me to do so. At first formation, a few hours later that same morning, the C.O. {commanding Officer} asked that anyone with substance abuse issues step to the rear of the formation. I did so. I was then sent to the M.P. {military police} station for an alcohol test. And then I was given an article 15 for being drunk on duty. I was not evaluated by medical personnel at that time. At this point it became clear to me that asking for help in this manner had been an error on my part. , My reason for seeking help in this manner was, that in one brief moment of clarity that addicts are so rarely afforded, I saw my disease progression with absolute clarity and I was fearful that if I did not act immediately, I would lose the courage to do so. I had started to come to terms with my alcoholism while still stationed in Germany. It had cost me an early promotion to E5. As my apparently chronic alcoholic condition continued to deteriorate, due to a lack of treatment, one of several alcohol related incidents was a motor vehicle accident resulting in hospitalization. The subsequent line of duty accident investigation (copy attached) revealed the systemic failure of the drug and alcohol program at Fort Knox to provide proper and timely medical attention ... Even after this investigation reached its conclusion, no substance abuse counseling or treatment was offered. Several NCO's inferred that I was being made an example of at the time. Only after it became clear that no treatment or counseling for substance abuse was going to be made available did I, at the urging of, and with the help of responsible family members (several of them military veterans), go AWOL and return to my home of record. If you question the actions of these people, just ask yourself, if you had a daughter, son or other loved one in that situation where no proper or timely medical help was being provided, what would you as a responsible parent, grandparent, or friend do? I've been clean since that day. Long term sobriety came later.” d. The applicant had several alcohol related incidents, including an off-post motor vehicle accident on 31 October 1987 in which he was injured. This required a formal line of duty investigation which was completed by a LTC who was an Armor Officer at Fort Knox. He correctly concluded the applicant’s head injury was not in line of duty due to own misconduct, but then went on to state in his 25 January 1988 report (page 38): “I must caveat my finding with my observation that the Drug and Alcohol Program at Fort Knox systemically failed to provide SP4 {Applicant} with proper and timely medical care prior to this accident. The statement of CPT . indicates that SP4 {Applicant} was initially referred to the ADACP on 23 March 1987. The statements of SGT and SGT . indicate that SP4 {Applicant} has yet to begin individual treatment for his apparent alcoholism. The delay was caused by combination of duty commitments and a change in ADACP personnel. While not an excuse for his conduct pertaining to this investigation, I feel that had SP4 Breceived the medical attention regulated by the ADACP, this incident may never have occurred. Ultimately, SP4 should have asserted his right to treatment.” e. As noted in the applicant’s self-authored letter, he had unsuccessfully sought treatment in July 1987, an action which led to non-judicial punishment and would lead most individuals to not seek help from that source a second time. This fact was unlikely to have been known by the investigating officer. f. It is also notable that despite this enlisted member’s alcohol related accident on 31 October 1987, he had “yet to begin individual treatment for his apparent alcoholism” as of the 25 January 1988. Yet paragraph 3-7b of AR 600-85, Alcohol and Drug Prevention and Control Program (3 November 1986), states: “The commander will refer all individuals who are suspected or identified as drug and/or alcohol abusers; including those identified through urinalysis and blood alcohol tests.” g. Not only did the applicant’s commander have a duty to and subsequently fail to refer him for treatment after his alcohol related motor vehicle accident or the publication of the investigation, he should also referred the applicant after he was found to have alcohol in his system at the July 1987 morning formation. h. A Charge Sheet (DA Form 458) dated 3 May 1988 shows the applicant was charged with absence without leave from 8-24 March 1988 and 2 April – 23 August 1988. i. From his 26 August 1988 Personal Control Facility Interview Sheet after he returned for being AWOL (page 26 of the SD): “Why did you go AWOL? The reason I went AWOL was to deal with my alcohol problem. What action did you take before going AWOL to solve the problem? Self- referral to my commander for drug and alcohol counseling.” j. On 31 August 1988, the applicant voluntarily requested discharge in lieu of trial by court-marital under chapter 10 of AR 635-200. The request was approved by the battalion commander on 6 October 1988 with an under other than honorable characterization of service. k. No probative medical documentation was submitted with the application. There is one ADAPCP (Alcohol and Drug Prevention and Control Program) Intake Screening Record with an illegible date and one ADAPCP Client Progress Report dated 17 October 2017 showing the reason for this report as “Released from Program” two weeks before his motor vehicle accident. His accident just 2 weeks after he was released from the program and the Investigating Officer’s caveat noted above bring into question both the veracity and applicability of these two documents. l. Review of his records in JLV shows he is not registered with the VA. m. Paragraph 2-2 of AR 600-85, Alcohol and Drug Prevention and Control Program (3 November 1986), is titled “Responsibilities and Prevention.” The first subparagraph, 2-2a, states: “Commanders at all levels are responsible for ensuring that there are effective local alcohol and other drug-abuse prevention efforts. These efforts must be developed and implemented in accord with this regulation and include public awareness activities within the military community and individual units.” n. The contemporaneous documentation makes clear the applicant was abusing alcohol and aware of his problem, he unsuccessfully sought treatment for this condition, his command failed to refer him for treatment, he was then fortunately not killed in an alcohol related motor vehicle accident but did sustain a head injury requiring an investigation, his command again failed to refer him for treatment both after the accident and after the publishing or the investigation, the applicant then went absent without leave in order to obtain the treatment he had been denied, and he was subsequently discharged for same. o. The 25 July 2018 memorandum - SUBJECT: Guidance to Military Discharge Review Boards and Boards for Correction of Military/ Naval Records Regarding Equity. Injustice, or Clemency Defeminations – is applicable in this case. Paragraph 6a notes that in considering the granting of relief on the basis of equity, injustice, or clemency: “It is consistent with military custom and practice to honor sacrifices and achievements, to punish only to the extent necessary, to rehabilitate to the greatest extent possible, and to favor second chances in situations in which individuals have paid for their misdeeds.” p. Paragraph 6k notes that “Relief is generally more appropriate for nonviolent offenses than for violent offenses.” q. The applicant’s command failed to care for their Soldier. While this may not fully justify his periods of absence without leave, it certainly makes them understandable: He knew he had an alcohol problem to such an extent that he was in a motor vehicle accident and yet his command was found to have repeatedly failed him so he sought treatment on his own. r. It is the opinion of the Agency medical advisor that an upgrade of his discharge is warranted based on the referenced 25 July 2018 memorandum. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. 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. The applicant was charged with commission of an offense (AWOL) punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and result in an under other than honorable conditions character of service. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the applicant’s service did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 him a DD Form 214 for the period ending 9 November 1988 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to fully 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. REFERENCES: 1. Title 10, U.S. 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. Army Regulation 635-200, Personnel Separations – Enlisted Personnel, sets forth the basic authority for the separation of enlisted personnel. 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. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. 4. 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. 5. AR 15-185 (ABCMR), paragraph 2-9 states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010246 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1