ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170010518 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored 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 that he is seeking an honorable discharge so he can refinance his home with a Department of Veterans Affairs loan. He states that he has been alcohol free for over 20 years now and has been a truck driver since 1994. 3. A review of the applicant's service records show: a. He enlisted in the Regular Army on 14 May 1984. b. He received nonjudicial punishment under Article 15 on: * 23 August 1985 for theft of property of the US Government * 13 November 1985 for being incapacitated for the proper performance of his duties. c. On 30 December 1985, he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) as a command referral for alcohol abuse. d. On 3 March 1986, the applicant’s commander determined that further rehabilitation efforts were not practical after the applicant failed to attend two appointments. e. On 6 March 1986, the Clinical Director at Fort Sill Community Counseling Center submitted a Rehabilitation Status update to the applicant's commander. He stated that the applicant was enrolled in ADAPCP as a command referral for alcohol abuse on 30 December 1985. He completed Track I on 4 and 11 January 1986 and was a follow- up in Track II individual counseling. He attended 3 counseling sessions and failed to keep 2 appointments. Two command consults were held regarding his progress. The clinical director added that on 3 March 1986 a consultation was held with the applicant's commander and the commander determined that further rehabilitation efforts were not practical. f. On 7 April 1986, the applicant was notified of initiation of separation proceedings, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 9 for alcohol or other drug abuse rehabilitation failure, and recommended the issuance of an under honorable conditions discharge. g. On 7 April 1986, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected not to submit a statement in his own behalf. h. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him for alcohol or other drug abuse rehabilitation failure in accordance with AR 635-200, chapter 9. His chain of command recommended approval. The commander stated: * the applicant was given a letter of reprimand by a general officer for DUI (driving under the influence) in August 1985; he was then enrolled in ADAPCP Track II * on 7 November 1985, he reported to one of his ADAPCP sessions and reeked of alcohol; after tests were conducted, he was given an article 15 for wrongful previous overindulgence in alcohol * this certainly points to a lack of desire on his part to rehabilitate himself * he continued with his Track II rehabilitation program at the community counselling center and his progress was considered to be unsatisfactory by the counselor * the applicant lacks the potential for continued army service and rehabilitation efforts are no longer practical i. The separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 9, with his service characterized as a general, under honorable conditions discharge. j. On 15 April 1986, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for alcohol abuse - rehabilitation failure under the provisions of AR 635-200 paragraph 9, with his service characterized as a general, under honorable conditions discharge. It also shows he completed 1 years, 10 months, and 20 days of active service. He was awarded or authorized the Army Service Ribbon, Expert Rifle M-16 Qualification Badge, and Hand Grenade Qualification Badge. 4. By regulation, a member who has been referred to the Army Drug and Alcohol Prevention and Control Program (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. 5. 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. 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 short term of honorable service completed prior to a pattern of misconduct, as well as the applicant already receiving a general discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service. 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. 7/9/2019 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. AR 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) 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 Army Drug and Alcohol Prevention and Control Program (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 general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. However, an honorable discharge is required if restricted-use information was used. d. Paragraph 9-2 states that a soldier a soldier who is enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program 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. 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.