ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170011192 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge to honorable. 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 he requests the following injustice be corrected; he wants the type of discharge from under honorable conditions (general) to honorable. As a newly- promoted sergeant, he refused to give up the names of the Soldiers (which included 2 officers) to the company commander involved in the use of marijuana during a recent sweep. By the time the investigation was over, he was ready to leave his young career due to the manner in which he was treated while trying to protect not only his Soldiers but his integrity which is what he learned as a distinguished graduate from the leadership academy. He could not handle the pressures of senior Soldiers coming up to him and begging him not to say anything. He believes he was targeted to gain information about Soldiers within his command because of his age and because he was a newly appointed Non-commissioned Officer (NCO). It is his opinion that his commander lost all control of his unit and put the screws to him. He has no supporting documents due to the fact that he was set up on trumped up charges because he refused to cooperate with his investigation would have led to career-ending consequences for many of the staff. He had received the Army's Good Conduct Medal for service. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 21 June 1978. He served honorably until 25 March 1981. He reenlisted in the Regular Army on 26 March 1981. b. He served in Germany from 3 October 1978 to 16 June 1981. c. On 27 October 1982, he registered tetrahydrocannabinol (THC) positive as a result of a unit sweep. He was enrolled in the ADAPCP (Alcohol and Drug Abuse Prevention and Control Program) on 5 January 1983 and was declared a rehabilitative failure on 6 January 1983 because of his lack of desire to curtail substance abuse. As indicated by his verbal comment that referred to continuation of use/abuse, the rehabilitation team meeting convened on 6 January 1983 and determined that further rehabilitation efforts for this individual were not practical and would likely be unsuccessful. The recommendation of the office is that the service member be separated from the service under the provisions of Army Regulation (AR) 635-200, (Personnel Separation – Enlisted Personnel) chapter 9 (alcohol or other drug abuse rehabilitation failure). d. On 20 January 1983, applicant was notified by his immediate commander’s intent to separate him under the provisions of AR 635-200, chapter 9 (alcohol or other drug abuse rehabilitation failure) for abuse of drugs. e. On 24 January 1983, he was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense under the provisions of AR 635-200, chapter 9, its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he had been afforded the opportunity to consult counsel * that he was being consider for service characterization under honorable conditions (general) * understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life f. On 2 February 1983, the separation authority approved separation under AR 635-200, chapter 9 with the issuance of an under honorable conditions (general) discharge. g. On 16 February 1983, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for drug abuse rehabilitating failure under the provisions of AR 635-200, Chapter 9. It shows he completed 4 years, 7 months, and 12 days of total active service. It also shows he was awarded or authorized. * Army Service Ribbon * Good Conduct Medal * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with M16 Rifle Bar * Expert Marksmanship Qualification Badge with hand Grenade Bar 4. On 28 January 1992, the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, has determined that he was properly and equitably discharged. Accordingly, the ADRB denied his request for a change in the character and/or reason of his discharge. 5. By regulation AR 635-200, members who is enrolled in 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: a. There is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. b. Long-term rehabilitation is necessary and the member is transferred to a civilian medical facility for rehabilitation. c. Nothing in this section prevents separation of a member who has been referred to such a program under any other provision of this regulation. 6. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. The applicant has also failed to accept responsibility and show remorse for the events leading to his separation. He was discharged for failing to rehabilitate while in a substance abuse program, and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214. Therefore, the Board recommended making that change to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 21 June 1978 until 25 March 1981.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 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 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 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. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011192 5 1