IN THE CASE OF: BOARD DATE: 16 December 2021 DOCKET NUMBER: AR20210013635 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 15 March 2021, with self-authored statement * Supplemental Statement, undated * Clinical Progress Notes, dated between 14 May 2008 through 10 February 2016 * What You Should Know About Chapter 9, Information Sheet, undated * Miscellaneous documents from his official military personnel file (OMPF) (23 pages) * Excerpt from Military Law Task Force, Psychiatric Policies, 2017 (16 pages), with undated self-authored statement (8 pages) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records 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 his conduct was exemplary until he turned himself in for drug use. He believes he was suffering from extreme anxiety disorder, possibly from post- traumatic stress disorder (PTSD). He was experiencing time loss, mood, and concentration issues. Because of an investigation, the first sergeant was forced to resign; he deemed the applicant to be the leader of a conspiracy against him. This discharge was based on revenge against him by the first sergeant. 3. In a supplemental statement to the Board, the applicant states he suffered with adjustment and anxiety for many years after his discharge. Despite this, he always maintained a job and performed above average work, even when his life was falling apart. He asks that his military record be considered; specifically, he received a letter of appreciation just days before he turned himself in for rehabilitation. He never received an Article 15 or Uniform Code of Military Justice (UCMJ) action during this time. He was never offered post-military rehabilitation for drugs, alcohol, or mental health. 4. The applicant enlisted in the Regular Army on 30 October 1980. He reenlisted in the Regular Army on 17 February 1984. 5. By memorandum from the Behavioral Science Specialist Counselor, dated 28 January 1985, the applicant’s commander was notified that the applicant, a self- referral for drug use on 21 January 1985, was determined to be a rehabilitation failure. The basis for this action was: * unable and unwilling to be returned to effective duty * unable to remain free from the abuse of drugs * further rehabilitative measures were not practical due to his inability of total abstinence * no motivation to participate in therapeutic program (positive urinalysis on 29 January 1985) 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 31 January 1985, shows the applicant underwent a mental status evaluation, wherein it was determined that he was mentally capable to understand and participate in administrative proceedings. 7. The applicant's commander notified the applicant on 21 February 1985 that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9, for rehabilitative failure by the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). The applicant acknowledged receipt on the same date. 8. The applicant consulted with counsel on 22 February 1985 and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He further acknowledged his understanding and elected to submit a statement in his own behalf, wherein he asked that his past record be considered for an honorable discharge characterization. He further stated that he was not suited for the new Army. 9. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 9. As the specific reasons, he cited the applicant’s failure by the ADAPCP for a positive test result for marijuana. This test was given by the ADAPCP on the advice of the immediate commander as it appeared the applicant came to work under the influence. 10. The separation authority approved the recommended discharge on 25 February 1985 and directed that the applicant be issued an under honorable conditions (general) discharge. 11. The applicant was discharged on 8 March 1985, under the provisions of Army Regulation 635-200, Chapter 9, by reason of drug abuse rehabilitation failure. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as under honorable conditions. 12. The applicant provides: a. Clinical progress notes, dated between 14 May 2008 through 10 February 2016, which show he was being treated for depression and anxiety. b. Documents from his OMPF that attest to his military service. c. A self-authored statement detailing incidents of physical assault, lack of proper medical care, the absence of his records, and his discharge processing. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 14. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. A review of his civilian medical records indicates he has been treated for Generalized Anxiety Disorder and Depression with symptoms well controlled on medication. b. A review of his service record indicates he self-referred to ADAPCP on 21 January 1985. On 28 January 1985 he tested positive for marijuana after he went to work under the influence of marijuana. His counseling statement indicates the applicant stated he smoked marijuana so he could be chaptered out of the Army. His Enlisted Evaluation Report indicates he was declared a rehabilitation failure by the Drug Rehabilitation Counselor. Rehabilitation failure can be as a result of continued substance abuse while in the program or refusal to meet the requirements of the program. On 31 January 1985 he completed a mental status evaluation and was cleared for administrative action. c. The applicant asserts he had PTSD but there is no medical documentation for this condition. A review of the Department of Veterans Affairs Joint Legacy Viewer indicates the applicant has a service connected disability rating of 40% with 30% for Generalized Anxiety Disorder effective 9 January 2021. d. There is no documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. Generalized Anxiety Disorder is not a mitigating factor for marijuana use. BOARD DISCUSSION: 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 PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Other than the corrections addressed in Administrative Note(s) below, the Board determined 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 otherwise 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 8 March 1985, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 801030 UNTIL 840216 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 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. a. Paragraph 3-7a provides that 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 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 the 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. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. 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 under honorable conditions unless the Soldier is in entry-level status. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (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. 4. The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. 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 (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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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) AR20210013635 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1