BOARD DATE: 22 January 2019 DOCKET NUMBER: AR20160011844 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. BOARD DATE: 22 January 2019 DOCKET NUMBER: AR20160011844 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 22 January 2019 DOCKET NUMBER: AR20160011844 THE APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests correction of his DD Form 214 (Certificate or Discharge from Active Duty) to show, in effect: * item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) – private first class (PFC)/E-3 * item 24 (Character of Service) - Honorable * item 28 (Narrative Reason for Separation) - completion of required service 2. The applicant states: a. Due to his involvement with the Army Criminal Investigation Command (CID), his life became endangered and it was necessary for him to leave his assigned unit: Charlie Troop, 3rd squadron, 12th Cavalry, in Büdingen, West Germany and reside with his first sergeant at his residence, until the review board could be convened to assign him to a stateside unit. b. He had been promoted to the rank/grade of PVT/E-3. c. His commander gave him the following options: remain in service and be reassigned to a unit elsewhere in Germany or accept a service discharge. He elected to accept a service discharge because the command was unable to safe guard his person. Had he accepted a re-assignment in Germany, he would have constantly feared for his life. d. He was unaware of the option to file or request an upgrade. In addition, after his military service, his personal health degraded to the point where he was unable to file for an upgrade. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records. 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DD Form 4 * two DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 3 June and 7 October 1983 * Memorandum, dated 11 October 1983 * Separation Documents * DD Form 214 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, in effect at the time, prescribed policies and procedures for enlisted separations. a. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Chapter 9 provides the authority and outlines procedures for discharging Soldiers for alcohol rehabilitation failure. (1) This discharge is based on alcohol abuse when the Soldier is enrolled in ADAPCP and the commander determines further rehabilitative efforts are not practical, rendering the Soldier as a rehabilitation failure. (2) The commander's determination will be made in consultation with the rehabilitation team. 3. 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 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. The 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, 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. DISCUSSION: 1. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 17 May 1982, the applicant enlisted in the Regular Army in the rank/grade of private (PVT)/E-1. 3. His record contains no evidence to show when he was promoted to Private (PV2)/E-2 or PFC/E-3. 4. The record does not contain nor did the applicant provided any documentation to show he was involved with CID or that his life was in danger. 5. He received nonjudicial punishment (NJP) on two occasions: a. On 3 June 1983, for being absent from his place of duty with intent to abandon the same, and for disobeying an order from a noncommissioned officer, a superior to "pull" guard duty. His punishment included a reduction to the rank/grade of PVT/E-1. b. On 7 October 1983, for two specifications of knowingly and wrongfully using marijuana, as determined by a urinalysis test, and for wrongfully using codeine/morphine. 6. The applicant’s commander received a letter from the Clinical Director of the Hanau Military Community, dated, 11 October 1983. The letter states the applicant was enrolled in the Alcohol and Drug Prevention and Control Program (ADAPCP) on 14 June 1983 as a result of a command identification involving the possession of hashish. He was enrolled in the Tract II rehabilitation and participated in seven sessions of individual counseling and two urinalysis tests with one negative result and one positive result for codeine/morphine and marijuana. The letter states, "His initial progress was satisfactory; however, his most recent positive indicates a return to or continued drug usage. The codeine/morphine is explainable as prescribed medication from the dental clinic. The marijuana positive [results], however, indicates further illicit drug usage, which is in violation of the initial rehab team meeting criteria. [Applicant’s] potential for successful rehabilitation is deemed poor in the military setting." 7. On 18 October 1983, the applicant's commander notified him that he was being considered for separation under the provisions of Army Regulation 635- 200 (Personnel Separations - Enlisted Personnel), chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure). The determination that he was a rehabilitation failure was identified as the basis for this action. The letter stated, “[applicant] was enrolled in the ADAPCP on 14 June 1983 for a possession of illicit drug offense. Subsequently a urinalysis test returned with positive results for [marijuana]. This constitutes a failure on the service member’s part. Additionally, this violated post treatment goals. His failure to cease his use of illicit substances further indicates that his potential for successful rehabilitation is nonexistent… Furthermore, any further attempts to rehabilitate him will not only be ineffective but totally without justification as this individual does not deserve to remain in the United States Army." 8. On the same day, he was advised of the basis for the contemplated separation action, that he could consult with counsel, and that he could submit a statement on his own behalf. He waived his right to consult with counsel and did not submit a statement. 9. The separation authority approved the commander's recommendation, and directed the applicant receive a character of service of general under honorable conditions. The applicant was released from active duty on 27 October 1983. 10. His DD Form 214 shows he was separated in the rank/grade of PVT/E-1, under honorable conditions (general discharge). He completed 1 year, 5 months, and 11 days of net active service. The separation authority was listed as Army Regulation 635-200, chapter 9, due to Drug Abuse – Rehabilitation Failure. 11. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12 The applicant provided a statement as part of his application that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160003869 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011844 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2