IN THE CASE OF: BOARD DATE: 7 April 2021 DOCKET NUMBER: AR20200005737 APPLICANT REQUESTS: The applicant requests correction of his characterization of service from general, under honorable conditions to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 293 (Application for the Review or Discharge from the Armed Forces of the United States) in lieu of a DD Form 149 (Application for Correction of Military Record) . DD Form 214 (Certificate of Release or Discharge from Active Duty) . Personal Statement . Character References x4 . Enlistment Contract . Identification Card Application . Certificate of Achievement . A Portion of his Separation Package . Personnel Qualification Record . Army Discharge Review Boards (ADRB) Denial Letter FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 he believes his discharge was unjust or erroneous. He was discharged due to depression, he attempted suicide in April of 1983. If today’s standard of awareness and care were available for depression resulting in a suicide attempt his mental healthcare and situation would have been much better and his discharge would have been honorable. He has worked hard to be a productive member of his community. He notes the letters of support he has provided from his employers and volunteer efforts. He accepts full responsibility for his actions while in the military. 3. In a personal statement he indicates he is a recovering alcoholic. The date of his last drink was 8 August 1988. He was born in Niagara Falls, NY, and he lives on the Tuscarora Indian Nation. He is enrolled as a member of the St. Regis Mohawk Nation. He attended the Tuscarora Indian School through 5th grade and he graduated from Niagara Wethersfield Senior High School in 1981. Prior to joining the Army, he had not been away from home and he was lonely. His drinking progressed when he was assigned to Germany. He felt lost not being able to go home. In 1988, he received his commercial driver’s license and started attending Alcoholics Anonymous meetings and he has not had alcohol since. In 1991 he received a back injury and is unable to drive trucks. He did drink and his behavior was unbecoming of a Soldier. Drinking turned him into someone he did not want to be. 4. He also provides character references from: a. Mr. C Jr., dated 18 January 2019, stating as a member and officer of the 5. Clan Alcoholics Anonymous, located on the Tuscarora Nation, He is writing to confirm the applicant has 31 years of sobriety. The applicant has been very helpful to the group and the Tuscarora Community. b. Chief, H, Clerk Tuscarora Nation, dated 29 January 2019, stating she is writing this letter on behalf of the applicant, who resides on the Territory of the Nation. He has known the applicant all of his life there on the Tuscarora Nation. He has always been an honorable person. He has always cooperated with the Nation when called upon for help with Nation activates and projects. He is a very honest and cooperative individual. He has worked at the Annual National Picnic for many years. He has always put the Nations Standards first. If he was to hire anyone, he would have no reason not to select the applicant. He does not know what the applicant’s life has been outside of the Tuscarora Nation, but he has proven to be a top resident of the Tuscarora Nation and he should never have anything standing in his way of life, here on the Tuscarora Nation his Home Nation, the Mohawk Territory. c. Ms. P, the Director, Tuscarora Environment Program, dated 29 January 2019, stating one of the biggest events of the year at the Tuscarora Nation is the Roadside Cleanup which depends on the community to donate their time. The applicant is invaluable to this program and the community. He is always courteous and helpful. He looks out for the elders. He is reliable and trustworthy. He always helps others. She requests that the Board help him as he helps others. d. Ms. B, RN, CS, ENP, undated, stating she has known the applicant since childhood. He was very quiet and he never got into trouble. He went into the Army following in his fathers and grandfathers’ footsteps. He developed a drinking problem and became more withdrawn while in the service. He has been sober for 19 years. He has been an active participant in the community for many years. He is always willing to help everyone. It is a pleasure to write this character reference for the applicant. 5. Certificate of Achievement, dated 2 April 1982, for outstanding performance and devotion to duty as evidenced by the Adjutant General “PAC” Inspection conducted on 16 February 1982. 6. On 5 February 1981, the applicant enlisted in the Regular Army (RA), for 3 years, in pay grade E-1. He held military occupational specialty P13E “Cannon FD SP.” 7. On 12 August 1982, he was assigned to Germany with the principle duties of a fire support specialist. 8. On 11 May 1983, the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) due to use of alcohol and cannabis. He was a non-bio-chemical command referral. a. He was enrolled in Track II. He attended four individual sessions of counseling and one urinalysis test returned negative results. He was referred to Nurnberg Hospital, in April, for a psychiatric exam. The results were normal. b. His progress during the first 90 days was unsatisfactory. His command was aware of three instances of acting out behavior and poor conduct due to his continual drinking. c. His potential for successful rehabilitation was determined to be poor due to continued use of alcohol and resultant poor performance in his unit. 9. On 25 July 1983, the applicant underwent a medical examination. His Report of Medical History shows he reported he was in good health and was not taking any medication. His Report of Medical History also indicates he was suffering from depression in April 1983, he attempted suicide, and he was hospitalized in Nurnberg Germany. 10. On 25 July1983, he also underwent a mental status evaluation. He was determined to be able to distinguish right from wrong; he was mentally responsible; able to adhere to the right; he had the capacity to understand and participate in board proceedings; he met retention standards prescribed in chapter 3, Army Regulation (AR) 40-501; and a rehabilitation transfer was recommended. 11. On 29 July 1983, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 9 of AR 635-200 (Personnel Separations – Enlisted Personnel) for lack of potential for continued Army service and that further rehabilitation efforts were no longer practical. The recommendation was an honorable discharge. The reason cited for the proposed action was, “By your own conviction, unable to overcome your alcohol problems. You have not made any progress through counseling by CCC. In fact, you have regressed during treatment. You have been determined to be non-rehabilitative by CCC and this command.” 12. On 30 July 1983, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for drug rehabilitative failure, the type of discharge he could receive and of the procedures/rights available to him. In his acknowledgement, he stated he did not desire further legal counsel. He declined to submit statements in his own behalf and treatment in a Department of Veterans Affairs Hospital. 13. The applicant's immediate commander initiated separation action against him in accordance with chapter 9, AR 635-200 by reason of drug abuse-rehabilitation failure. His commander cited the reason for his recommendation was the applicant had a serious personality problem. He was removed/relieved of his minimum responsibilities in the “FDC” as a 13E. He was unpredictable. 14. The separation authority approved the commander's recommendation. On 9 September 1983, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 7 months, and 5 days of his 3-year enlistment contract. His DD Form 214 also reflects in: . Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – Army Service Ribbon and Expert Marksmanship Qualification Badge Rifle (M-16) . Character of Service – “Under Honorable Conditions” . Separation Authority – Chapter 9, AR 635-200 . Narrative Reason for Separation – “Drug Abuse – Rehabilitation Failure” 15. On 5 April 1985, the ADRB reviewed his discharge but found it proper and equitable. The ADRB denied his petition for an upgrade of his discharge. 16. He provides: a. A personal statement indicating that he is a recovering alcoholic. His drinking progressed when he was assigned to Germany. He felt lost not being able to go home. In 1988, he became a licensed commercial truck driver and started attending Alcoholics Anonymous meetings, he has not drank since. In 1991 he received a back injury and is unable to drive trucks. When he did drink, his behavior was unbecoming of a Soldier. Drinking turned him into someone he did not want to be. b. Character References that describe him as a valued member of the Tuscarora Indian Nation. He supports his community and he is honest and cooperative. He has been sober since 1988 and he continues to attend Alcoholics Anonymous meetings. He is a positive role model in his community. c. Certificate of Achievement for outstanding performance and devotion to duty as evidenced by the Adjutant General “PAC” Inspection conducted on 16 February 1982. 17. The applicant contends he believes his discharge was unjust or erroneous. He was discharged due to depression, he attempted suicide in April of 1983. If today’s standard of awareness and care were available for depression resulting in a suicide attempt his mental healthcare and situation would have been much better and his service would have been honorable. He has worked hard to be a productive member of his community. 18. On 9 September 1983, he was discharged under chapter 9, AR 635-200 by reason of drug abuse-rehabilitation failure. He completed 2 years, 7 months, and 5 days of his 3-year enlistment contract. 19. The evidence of record shows the applicant was provided opportunities to overcome his alcohol/drug problems, including enrollment in ADAPCP. After He failed to respond constructively, he was declared a drug abuse-rehabilitation failure and separation action was initiated against him. 20. On 7 December 2020, the Army Review Boards Agency provided the applicant an opportunity to provide medical evidence to support his request. He did not respond. 21. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 22. In reaching its determination, the Board can consider the applicant's petition, his contentions, his service record, and his submissions in light of the published guidance on equity, injustice, or clemency. 23. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Honorable Conditions discharge was due to depression and suicidal ideation/attempt he developed during his time in service. b. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. No hard copy military medical records or civilian medical documentation was provided for review. c. Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 03 Apr 1980 and subsequently switched to the Regular Army on 05 Feb 1981. While on active duty, he was assigned overseas to Germany from 10 Aug 1982 -08 Sep 1983. His awards include the Army Service Ribbon. His job assignment was as a Fire Support Specialist. A Synopsis of ADAPCP Rehabilitation Activities, dated 25 Jul 1983 noted “enrolled on 11 May 1983…use of alcohol and cannabis…first 90 days 3 instances of…continued drinking. A Report of Medial History, dated 25 Jul 1983, indicated his report of “depression, attempted suicide Apr 1983” and placement at Nurnberg Hospital, Germany. It was further noted he did not have any profiles and “otherwise essentially healthy.” A Report of Mental Status Evaluation on the same day indicated no significant mental health issues. He received an Under Honorable Conditions discharge on 09 Sep 1983 with narrative reason: Drug Abuse/Rehabilitation Failure. d. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). There were not any behavioral health notes nor problem list entries in JLV. e. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, depressive symptoms. As there is an association between depressive symptoms and use of illicit drugs and alcohol to self-medicate symptoms, there is a nexus between his depression and the pattern of substance abusing behavior, particularly with alcohol, the applicant demonstrated. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during his time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop or have a worsening of depressive symptoms in a non-combat environment. A discharge upgrade is recommended. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the medical records and the review and conclusions of the advising official. Notwithstanding the medical advisory finding there is a nexus between his depression and the pattern of substance abusing behavior, particularly with alcohol, the applicant demonstrated. The Board disagreed, finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, they denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX 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. X CHAIRPERSON 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in an entry-level status and an uncharacterized description of service is required. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). Army Regulation 40-501 does not list alcoholism or alcohol abuse as a condition that requires referral to a medical evaluation board. 4. Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a medical evaluation board to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status. If the medical board determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board. The physical evaluation board evaluates all cases of physical disability equitably for the Soldier and the Army. It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 5. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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. 6. 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 (TBI); 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 sexual assault or sexual harassment was unreported, or 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. 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the 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//