ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20170003429 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 the type of discharge does not reflect the nature of his service to his country. 3. A review of his service records shows: a. He enlisted in the Regular Army on 11 September 1992. b. He accepted nonjudicial punishment on 19 July 1995 for wrongfully having a blood alcohol level above 0.05 percent, while on duty. c. He received counseling for the following reasons: * driving under the influence of alcohol * failing to report and maintaining contact with the unit of his whereabouts * failure to report and disobeying a direct order * failed to be at the appointed place of duty, missed formation * failed to report for duty, under the influence of alcohol d. On 22 September 1995, I corps and Fort Lewis command alcohol and drug abuse prevention and control program (ADAPCP) states, the applicant was referred by his commander for evaluation. An initial screening and evaluation was made by the a. ADAPCP counseling staff on 28 June 1995. Results, which were reviewed by the supervisory clinical staff, revealed that primary substances of abuse was alcohol. It was determined that the applicant had problems significant enough to warrant enrollment in track II. He did not make satisfactory progress toward achieving the criteria for successful rehabilitation and further rehabilitation efforts in the military environment were not justified. e. The applicant underwent a medical examination on 2 October 1995. f. The applicant was notified of his proposed discharge from the Army and he acknowledged receipt. g. He was advised by his commander of the basis of the contemplated separation action under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel – Personnel Separations), chapter 9 and its effects and the rights available to him, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects. He elected not to submit a statement in his own behalf. h. The commander initiated discharge proceeding on 31 October 1995, under the provision of AR 635-200, chapter 9, rehabilitative failure and recommended a general under honorable conditions characterization of service. i. On 6 November 1995, the separation authority approved the applicant’s discharge and directed that he receive a general discharge under honorable conditions. 4. The applicant was discharged on 1 December 1995. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service characterization as under honorable conditions (general). He completed 3 years, 2 months and 21 days of net active service. 5. The Army Discharge Review Board by letter on 16 September 2009 carefully reviewed the applicant’s application and the Board determined that he was properly and equitably discharged and denied his request for a change in the character and/or reason of his discharge. 6. By regulation 635-200, a chapter 9 discharge is based on alcohol or other drug abuse such as the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drugs. 7. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded there was insufficient evidence to show that there was an error or injustice which would warrant changing the applicant’s record. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X 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. 5/28/2019 X CHAIRPERSON Signed by: 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. AR 635-200 sets policies, standards, and procedures to insure the readiness and competancy of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. a. Paragraph 3-7a states an honorable discharge is a separation with honor. 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. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in the following circumstances: when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Army, when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of members of the Army. c. Paragraph 9-2, provides the authority and outlines the procedures for discharging personnel without right to board action. Discharge is based on alcohol or other drug abuse such as the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drugs. 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 in the following circumstances: there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical, long-term rehabilitation is necessary and the member is transferred to a civilian medical facility for rehabilitation. Nothing in this section prevents separation of a member who has been referred to such a program under any other provision of this regulation. 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 (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. 1. 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. 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 based on 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. 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.