ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170012045 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge From Active Duty) 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 did not receive any felony convictions until 3 years after his discharge. 3. A review of the applicant’s service record: a. He enlisted in the Regular Army on 27 May 1982. b. He accepted nonjudicial punishment on/for: * 1 November 1982, for being absent without leave from 6 October 1982 to 24 October 1982 * 3 December 1982, for breaking restriction c. The applicant registered positive for tetrahydrocannabinol (THC) on a unit sweep conducted 20 April 1983. He was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 6 May 1983. PV2 Cook was enrolled in the ADAPCP on 6 May 1983 and was declared a rehabilitative failure on 11 May 1983 because of his unwillingness to discontinue illegal substance abuse. d. The applicant was notified by his immediate commander of his intent to separate him under the provisions of Army Regulation (AR) (Personnel Separations – Enlisted Separations), chapter 9. The reason for his proposed action was the applicant’s abuse of drugs and being declared a rehabilitative failure. e. On 13 June 1983, the applicant was advised by consulting counsel of the basis for the contemplated action to accomplish separation for alcohol or other drug abuse rehabilitation failure under the provisions of AR 635-200, chapter 9, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he elected to not to submit a statement in his own behalf * he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * he would be ineligible to apply for enlistment in the Army for a period of 2 years after his discharge * he requested follow-up drug rehabilitation treatment f. The applicant’s immediate commander initiated action to separation him under the provisions of AR 635-200, chapter 9, paragraph 9-2, alcohol or other drug abuse rehabilitation failure. g. Consistent with the commander’s recommendation, the separation authority directed that the applicant be discharged from the Army under the provisions of AR 635-200, chapter 9, paragraph 9-2, for Alcohol or Other Drug Abuse Rehabilitation Failure and issued a General Discharge Certificate. h. He was discharged from active duty on 30 June 1983 with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 1 year and 16 days of active service with 18 days lost time. He was awarded or authorized: * Army Service Ribbon * Parachutist Badge * Marksman Marksmanship Qualification Badge with Hand Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar 4. By regulation, a Soldier 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. 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. Based upon the record, the Board agreed that there was a lack of evidence to show an error or injustice which would warrant a correction 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. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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 provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. It will not be issued to Soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) of that regulation provides the procedures for discharging Soldiers for alcohol or other drug abuse rehabilitation failure. The Soldier is entitled to request a hearing before an administrative separation board if he or she has 6 or more years of total active and reserve military service per paragraph 2-2 d. A Soldier who has less than 6 years of military service is not entitled to a board, Discharge is based on alcohol or other drug abuse such as the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug when the Soldier is enrolled in ADAPCP, and the commander determines that further rehabilitation efforts are not practical, rendering the Soldier a rehabilitation failure. This determination will be made in consultation with the rehabilitation team. d. Paragraph 9-2 states that 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. ABCMR Record of Proceedings (cont) AR20170012045 4 1