IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230002476 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Report of Separation from Active Duty) * Medical note, dated 26 August 2022 * Brief in support of application * Self-authored letter * Character reference letters (3) 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. Counsel states, in pertinent part: a. When the applicant requested discharge for the good of the service, he was pending trial by special court-martial for charges of selling heroin, unlawful possession of heroin, and a hypodermic syringe and needle. He was assigned in Germany at the time these offenses took place. Until these offenses occurred, the applicant's service had been satisfactory. He completed basic training and advanced infantry training, he received excellent ratings during both endeavors. b. The alleged offenses took place on January 3, 1975. On that day, an informant, acting under the direction of the Criminal Investigation Division (CID), purchased two $10 packets of heroin from the applicant, leading to his apprehension. CID agents found a hypodermic syringe in his trousers, three foil papers containing heroin residue in his fatigue jacket, and a spoon tainted with heroin residue in his wall locker. The applicant maintains that he sold heroin only to support a habit which had gotten out of control. c. The applicant is maintaining that had it not been for his habit, he would not have become involved in the sale of heroin. The available medical records offer some vital support to this view. Such an explanation of his heroin trafficking mitigates his offense to the point that his discharge is inequitable and should be upgraded. 3. The applicant states, in effect: a. He enlisted right after high school in order to serve and protect his country and to secure a better life for himself and his family. He thought this would be a good way to accomplish that goal. He trained as an infantry Soldier and received various awards and commendations. He was an excellent Soldier prior to becoming addicted to heroin. b. He began to use heroin while stationed in Germany. The reason being was that he had become despondent because he wasn't home, his wife was pregnant, he couldn't bring her to Germany, he missed his family, and he became depressed. He was introduced to heroin by another Soldier in his barracks as a way to alleviate all the pain that he was feeling. He tried to get help from his commanding officer, and he told him that he didn't look like a drug addict and sent him back to his duties. He continued to use and became addicted. He made arrangements with another Soldier to make a purchase of the drug and was busted by military police. They took him to the station where he was made the offer to help them bust the people who were selling heroin to the Soldiers. If he did this, they would return him to the states with an honorable discharge and help for his addiction. He agreed to this arrangement and fulfilled his part of the agreement, but he was sent back home discharged as undesirable and addicted to heroin, to a newborn son and an unsuspecting wife. c. Over the years despite the many challenges that life has brought, he is proud of some of the things that he has been able to accomplish. He is a good citizen, has remained out of trouble, and has taken care of many family members. He went on to work for The Seattle Indian Health Board at their drug and alcohol treatment center for 25 years as the lead cook for their inpatient treatment program. He was given many awards and commendations for doing excellent work for the program. He worked there until he retired. Over the years he has participated in anger management classes, drug classes, seeing psychiatrists, participating in groups dealing with drug addiction, and all that goes along with being an addict for all the many years he has dealt with this. 4. On 15 September 1972, the applicant enlisted in the Regular Army, for 3 years. Upon completion of training, he was awarded military occupational specialty 11B (Light Weapons Infantryman). 5. On 15 March 1973, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for absenting himself from his appointed place of duty, on or about 7 March 1973. His punishment included forfeiture of $25.00 for one month. 6. Court-martial charges were preferred against the applicant on 3 February 1975, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with one specification of wrongfully having in his possession a hypodermic syringe and a hypodermic needle; one specification of having heroin in his possession; and one specification of wrongfully selling heroin, on or about 31 January 1975. 7. The applicant consulted with legal counsel on 7 February 1975, and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an undesirable discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court- martial. 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 Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He declined to submit a statement in his own behalf. 8. On 14 February 1975, the applicant's commander recommended approval of the applicant's request for discharge, and further recommended the issuance of an undesirable discharge. 9. By legal review, the applicant s Chapter 10, separation action was found to be legally sufficient for further processing. 10. Consistent with the chain of command s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 18 March 1975. He further directed the applicant s reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 11. The applicant was discharged on 25 March 1975. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 2 years, 6 months, and 11 days of net active service this period. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. The applicant petitioned the Army Discharge Review Board requesting upgrade of his UOTHC discharge. On 6 October 1982, the Board voted to deny relief and determined that his discharge was both proper and equitable. 14. The applicant provides the following (provided in entirety for the Board): a. Medical note from Kaiser Permanente that shows he was diagnosed with and receives treatment for post-traumatic stress disorder (PTSD) and major depressive disorder. b. Character reference letters (3) that collectively attest to his dedication to his family, his worth ethic, and the support he provides others. A letter from his spouse speaks to his struggle with addiction following his discharge from the Army. 15. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). He contends other mental health condition mitigates his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 15 September 1972. * On 15 March 1973, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for absenting himself from his appointed place of duty, on or about 7 March 1973. * Court-martial charges were preferred against the applicant on 3 February 1975, for one specification of wrongfully having in his possession a hypodermic syringe and a hypodermic needle; one specification of having heroin in his possession; and one specification of wrongfully selling heroin, on or about 31 January 1975. After being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10 in lieu of trial by court-martial. * The applicant was discharged on 25 March 1975. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 2 years, 6 months, and 11 days of net active service this period. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant s completed DD Form 293, his ABCMR Record of Proceedings (ROP), DD 214, letter from his medical provider, self-authored letter, brief in support of application, character reference letters (3) and documents from his service record and separation packet. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. Due to the period of service, no active-duty electronic medical records were available for review. The applicant is not service-connected, likely due to the characterization of his discharge, as a result no VA electronic medical records were available for review. e. The applicant submitted medical documentation that indicates he was psychiatrically hospitalized soon after his discharge from military service from 12 June 1975 to 19 June 1975 and diagnosed with Substance Abuse and Neurotic Depression (this diagnosis no longer exists but is now labeled Major Depressive Disorder). The hospital record indicates that the applicant had a history of mental health symptoms prior to military service that would have placed him at a higher risk of depression, as a result of familial stressors. Consistent with the applicant s contention, the hospital discharge states, he started using heroin since he went to Germany in the service about two years ago; had been detoxified several times and caught selling heroin once and was finally discharged under less than desirable condition. After discharge he tried to keep away from drugs but still used heroin once in a while. On 8 June 1975 he overdosed on heroin. He was cyanotic and sent to W1C; since then, his wife threatened to leave him; he became quite depressed with a lot of regressed behavior such as lack of memory, lack of concentration, severe insomnia and crying spells; so he was sent here. On admission he admitted being depressed and expressed interest in treatment for heroin addiction but is quite reluctant to admit the severity of his problems. f. In a brief submitted by the applicant, it is noted that while in service the applicant sought assistance from his company commander. However, he was refused support and his addiction worsened which led him to resort to selling heroin as a mechanism to obtain the substance and prevent withdrawal symptoms. g. A letter provided by his medical provider, Dr. Anne Redburn, dated 26 August 2022 indicates that the applicant has experienced post-service hospitalizations due to his condition. In addition, the medical provider states that she has been treating the applicant since March 2014 and has diagnosed him with Major Depressive Disorder, PTSD, and Substance Abuse. h. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is evidence that the applicant had a behavioral health condition during military service that would partially mitigate his discharge. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts familial stressors and other mental health condition contributed to his substance abuse during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. There is medical documentation from soon after the applicant s discharge that indicates he was experiencing depressive symptoms. Given the nexus between depression and substance use, his possession of heroin, syringe and a needle are mitigated by his behavioral health condition. Once the applicant developed an addiction to heroin, he resorted to selling the substance as a mechanism to obtain the drug and prevent withdrawal symptoms, not as a way to make money, profit or gain wealth. While the substance use started as a coping mechanism to address his depressive symptoms, related to being away from his pregnant wife and unborn child, once the applicant developed the substance use disorder, he engaged in behaviors consistent with the manifestation of the disorder. However, the sale of heroin is not mitigated by any of the applicant s behavioral health conditions since none of them affect his ability to distinguish right from wrong and act in accordance with the right. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense 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 applicant's behavioral health claim and the review and conclusions of the ARBA BH Advisor. 2. A majority of the Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being only partially mitigated by a behavioral health condition. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 3. The member in the minority found the partial mitigation of his misconduct sufficient to support relief. The member in the minority determined the applicant s character of service should be changed to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :xx : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :xx :xx 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, 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 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. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 3. Army Regulation 635-200 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. 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 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, 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. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury, 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 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. 6. 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, 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) AR20230002476 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1