ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:   4 September 2020DOCKET NUMBER:  AR20200003275 


APPLICANT REQUESTS:  An upgrade of his character of service from general, under honorable conditions to fully honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Certificate of release or Discharge from Active Duty)

.Letter, Department of the Army, Office of the Deputy Chief of Staff for Personnel,Alcohol and Drug Policy, Washington, DC, dated 30 November 1983, (the frontpage only)

.Orders D-09-081476, U.S. Army Reserve (USAR) Personnel Center,


St. Louis, MO

FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records (ABCMR) conducted a substantive review of this case and determinedit is in the interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he was chaptered out of the military with a separation code of“JGH” due to drug use when a urine analysis came back positive.  He provided the firstpage of a letter from the Office of the Deputy Chief of Staff for Personnel, Alcohol andDrug Policy, and discharge orders that he believes will clear him of wrong doing.  Hecontends this letter allowed him to reenlist and be honorably discharged from the ArmyNational Guard (ARNG) [in effect, Ready Reserve].

3.The letter (page 1 only) the applicant provided states:

a.As a result of reported testing errors made by the San Diego and Oakland Navallaboratories during the period November 1981 to July 1982, the Department of the Army has screened your military records to determine if a positive urinalysis result tested by either laboratory during this period was the basis for any action taken against you or in otherwise reflected in your official military records.  
b.The records screen in your case was negative.  However, you may disagree withthis determination.  If you believe that an action was taken against you based on a positive urinalysis result tested during the above period, or that your military records erroneously reflect such a urinalysis result, you may petition the ABCMR to seek a correction of that error or injustice.   

c.The Army regulation which concerns application to the ABCMR is ArmyRegulation (AR) 15-185 and is enclosed.  I am also enclosing an application form  
(DD Form 149).  If you want the ABCMR to review your records, you should complete the application and submit it to the address provided on the back of the form.  Be sure to state what correction you want and submit whatever evidence you feel supports your claim. 

d.As an exception to policy, you may seek relief from the ABCMR without firstseeking relief under any other Army regulation.  The ABCMR will process and consider your application as quickly as circumstances permit.  This letter should not be considered an indication that an error or injustice has occurred in your case, or that any particular form of relief will be provided by the ABCMR.  The Board considers each case on its individual merits.  

e.In applying to the ABCMR, you may obtain legal assistance at an Army StaffJudge Advocate Office at any Army installation having such an office, or you may employ a civilian lawyer at no expense to the Government. 

4.On 6 May 1981, the applicant enlisted in the Regular Army for a period of 4 years.He completed basic and advanced individual training and was awarded militaryoccupational specialty (MOS) 83F (Photo Lithographer).  On 23 September 1981, hewas assigned to the U.S. Army Garrison, Presidio of San Francisco, CA, with duties inhis MOS.  The highest rank he attained while serving in the military was private/E-2.

5.His records also reveal a history of acceptance of nonjudicial punishment (NJP)under the provisions of Article 15 of the Uniform Code of Military Justice on:

a.22 March 1982, for failing to go to his appointed place of duty [the alcohol anddrug program building] on 12 February 1982, 13 February 1982, 1 March 1982, and  
15 March 1982.  His punishment consisted of a reduction to private/E-1, a forfeiture of $100 pay for 1 month, and 14 days of extra duty.  He appealed the punishment and after consideration of all matters considered, he was granted in part, a reduction to pay grade E-1, suspended for 90 days. 

b.12 April 1982, for failing to go to his appointed place of duty [the alcohol and drugprogram building] on 17 March 1982 and for striking a specialist four on the forehead 
with a closed fist on 23 January 1982.  His punishment consisted of a forfeiture of $309.15 pay for 2 months, 45 days of extra duty, and 60 days of restriction.   

6.On 26 April 1982, his immediate commander initiated a Bar to ReenlistmentCertificate against him citing the above NJP/misconduct.  The applicant was furnished acopy of this bar and he did not appeal or provide a statement in his own behalf.

7.A Sworn Statement, dated 3 May 1982, and a Statement of Counseling, dated
13 May 1982, both showing the applicant was counseled for failing to keep his AlcoholDrug Abuse Prevention and Control Program (ADAPCP) appointments.

8.On 27 May 1982, his Bar to Reenlistment Certificate was approved.

9.On 27 July 1982, he accepted NJP for being drunk and disorderly in a public place,Letterman Army Medical Center, Emergency Room, and for disobeying a lawful ordergiven by a noncommissioned officer (NCO) not to leave the emergency room, bothoccurring on 19 July 1982.  His punishment consisted of 30 days of extra duty and 14days of restriction.

10.A Report of Mental Status Evaluation, dated 28 July 1982, shows he wasdetermined to be mentally responsible and cleared for administrative action deemedappropriate by his chain of command.

11.A Report of Medical Examination, dated 28 July 1982, shows as part of thedischarge process, he was found qualified for separation.  His Report of Medical Historyshows he stated he was in good health, he had swollen or painful joints, cramps in hislegs, a painful or trick shoulder or elbow, and depression or excessive worry, anddepression associated with his recent duty assignment.

12.The applicant's immediate commander notified him of his intent to initiateseparation action against him under the provisions of paragraph 5-31 of AR 635-200,under the Expeditious Discharge Program (EDP).  The immediate commanderrecommended a General Discharge Certificate and cited the specific reasons as:

.Poor attitude

.Lack of motivation

.Lack of self-discipline

.Inability to adapt socially or emotionally

.Failure to demonstrate promotion potential



13.On 27 August 1982, the applicant acknowledged notification of the proposedseparation action.  He acknowledged that:

.he had been advised of the basis for the contemplated separation action underthe provisions of paragraph 5-31, AR 635-200 (Personnel Separations – EnlistedPersonnel)

.he had been advised of the effect on future enlistment in the Army, the possibleeffects of a general discharge and of the procedures and rights that wereavailable to him

.he understood if he were issued a general discharge, he could expect toencounter substantial prejudice in civilian life

.he did not desire to submit statements or a rebuttal in his own behalf



14.His immediate commander initiated separation action against him under
AR 635-200, chapter 5, EDP.  The basis for this discharge is due to his failure tocooperate with his superiors.  In addition, he received numerous punishment underArticle 15, UCMJ.  He had expressed hostility and it reflected on his work.  Thecommander strongly believed he would be no benefit for the service and should bedischarged immediately.  His intermediate commander also recommended approval.

15.On 27 August 1982, consistent with the chain of command's recommendations, theseparation authority approved the applicant's discharge under the provisions of
AR 635-200, paragraph 5-31, and directed that he be issued a General DischargeCertificate.

16.His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows hewas discharged on 27 August 1982, under the provisions of AR 635-200, paragraph5-31(h) 2, EDP.  He had completed a total of 1 year, 3 months, and 22 days ofcreditable active military service.  His authorized awards are listed as the MarksmanMarksmanship Qualification Badge with Rifle Bar and Army Service Ribbon.  It alsoshows in:

.Item 24 (Character of Service), Under Honorable Conditions (General)

.Item 26 (Separation Code), JGH

.Item 27 (Reenlistment Code), RE-3

.Item 28 (Narrative Reason for Separation), EDP, (Failure to Maintain AcceptableStandards for Retention)



17.AR 635-200 sets forth the basic authority for the separation of enlisted personnel.Chapter 5, then in effect, set forth the conditions under which enlisted personnel couldbe discharged, released from active duty or active duty for training, or released frommilitary control, for the convenience of the Government.  Paragraph 5-31, in effect at thetime, provided the policies and procedures for separating enlisted personnel under theArmy's EDP.

18.In 1973, the U.S. Army initiated the EDP as a test; it gave commanders theopportunity to separate unproductive Soldiers who had completed at least 6 months butless than 36 months of active duty and who had demonstrated that they could not orwould not meet acceptable standards required of enlisted personnel in the Army.  Theprogram required Soldiers to voluntarily accept discharge and they could receive eitheran honorable or general discharge.

19.His service record contains Orders 81-28, dated 22 April 1988, showing he wasdischarged from the USAR Control Group (Reinforcement), effective 21 April 1988 witha general characterization of service.

20.The applicant provides the following documents that he believes clears him ofwrong doing and justifies an upgrade of his discharge:

a.A letter (front page) from the Office of the Deputy Chief of Staff for Personnel,Alcohol and Drug Policy,  that states testing errors were made by the San Diego and Oakland Naval Laboratories during the period November 1981 to July 1982.  If he believed that an action was taken against him based on a positive urinalysis result tested during this period, or that his military records erroneously reflected such a urinalysis result, he could petition the ABCMR to seek a correction of that error or injustice.  The letter should not be considered an indication that an error or injustice had occurred in his case, or that any particular form of relief would be provided by the ABCMR.  The Board considers each case on its individual merits.  

b.Orders D-09-081476, USAR Personnel Center, St. Louis, MO, showing he washonorably discharged from the Ready Reserve, effective 20 September 1989. 

21.The applicant’s record does not contain evidence of a drug test or evidence thatshow he was discharged based on a positive drug test.

22.A service member who has been referred to the ADAPCP for alcohol/drug abusemay be separated because of inability or refusal to participate in, cooperate in, orsuccessfully complete such a program if there is a lack of potential for continued Armyservice and rehabilitation efforts are no longer practical.

23.In reaching its determination, the Board can consider the applicant's petition, hissubmissions, and his service record, in light of the published Department of Defenseguidance on equity, injustice, or clemency.





BOARD DISCUSSION: 

The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XXX 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 militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.The Department of the Army began testing the EDP in October 1973.  In a message,dated 8 November 1974, the Deputy Chief of Staff for Personnel announced theexpansion of the EDP.  The program provided for the separation of Soldiers whoseacceptability, performance of duty, and/or potential for continued effective service fellbelow the standards required for retention in the Army.  Soldiers could be separatedunder this program when subjective evaluation of their commanders identified them aslacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotionpotential.  An honorable or general discharge was required and there has never beenany provision for an automatic upgrade of a discharge less than fully honorable.

3.AR 635-200 (Personnel Separation – Enlisted Personnel) in effect at the time, setforth the basic authority for the separation of enlisted personnel.

a.Chapter 5 provided for the EDP.  The pertinent paragraph in chapter 5 providedthat members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  A general discharge was a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge. 

b.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.  
4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records regarding equity, injustice or clemency determinations.Clemency generally refers to relief specifically granted from a criminal sentence and
BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  
  
     a.  The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. 
  
     b.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 
 
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.  
 
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