ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20170019587 APPLICANT REQUESTS: a. Reconsideration of his earlier request to upgrade his general discharge under honorable conditions to honorable. b. As new requests, he asks, in effect, to change the separation authority and narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999030406 on 23 February 2000. 2. The applicant states the record of proceedings (ROP) for his previous ABCMR case clearly shows he was never enrolled in ADAPCP (Alcohol and Drug Abuse Prevention and Control Program). a. Page 3 of the ROP states he was discharged under an "inappropriate provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel)." As such, he requests the upgrade to honorable due to the honorable characteristics of his active duty service (apart from two incidents of driving under the influence (DUI)). b. He voluntarily enlisted and reenlisted; his leadership permitted him to reenlist because he was a Soldier with honorable character. He feels anything less than honorable would be unjust and would bring discredit upon him and his family. 3. The applicant's service records show: a. He enlisted in the Regular Army on 16 November 1976. After completing initial training, orders assigned him to Korea; he arrived on 1 July 1977. On 21 May 1979, while still in Korea, he was honorably discharged; he immediately reenlisted on 22 May 1979. On 30 July 1979, he was reassigned to Fort Ritchie, MD. b. Orders awarded him the Army Good Conduct Medal (1st Award) for the period 20 November 1976 through 19 November 1979. He was promoted to sergeant (SGT)/E-5; orders showed his date of rank as 8 November 1981. c. He was discharged on 25 February 1982 and immediately reenlisted on 26 February 1982. (No DD Form 214 is available for this term of service; effective 1 October 1979, AR 635-5 (Separation Documents) discontinued the issuing of DD Forms 214 for immediate reenlistments. In addition, his service record is void of any derogatory information from this period). He was reassigned to Fort Richardson, AK, arriving 30 September 1982. d. On 28 March 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice because, on 19 March 1983, he operated a passenger car while drunk. His punishment included reduction in rank to specialist four/E-4. e. On 27 June 1983, he accepted NJP for operating a passenger car while drunk, on 28 May 1983, and because he violated a lawful general order that revoked his post driving privileges for 1 year. As one of the punishments, the imposing officer reduced the applicant to private/E-1. f. On 28 June 1983, his Fort Richardson commander notified the applicant via memorandum of his intent to separate him under the provisions of chapter 9 (Separation for Alcohol or Other Drug Abuse), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander stated his reason was the applicant's unsatisfactory performance, and his failure to respond to counseling and rehabilitation efforts. The commander further advised the applicant he could submit statements in his own behalf, present his case before an administrative board (if he had 6 or more total years of active military service), and would be allowed to request an extension of time to consult with counsel. (The commander made no mention of referral into ADAPCP). g. On 29 June 1983, the applicant acknowledged receipt of the commander's notification, affirmed he understood military legal counsel was available, and stated he did not desire legal consultation. He elected not to submit statements in his own behalf. h. In his recommendation to the separation authority, the applicant's commander stated the basis for his action was the applicant's failure to refrain from excessive use of alcohol and the fact he had accepted two field-grade NJPs within 4 months. Under "Record of Counseling" and "Description of Rehabilitation Attempts" the commander indicated "N/A" (not applicable). i. On 28 June 1983, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 22 July 1983, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he had completed 1 year, 4 months, and 27 days of net active service, with 5 years, 3 months, and 10 days of prior active service. He was awarded or authorized the Army Good Conduct Medal (1st Award), Army Service Ribbon, Overseas Service Ribbon, and a marksmanship qualification badge. The separation authority was chapter 9, AR 635-200; his reenlistment (RE) code was "RE-4" (nonwaivable disqualification); and the narrative reason for separation was "Alcohol Abuse-Rehabilitation Failure." j. On 2 April 1999, the applicant requested assistance from his U.S. Senator in upgrading his character of service and reinstating his rank of SGT; he contended he had requested a general discharge under honorable conditions, but really intended to be honorably released from active duty. k. On 26 April 1999, the applicant petitioned the ABCMR to upgrade his general discharge to honorable, reinstate his rank of SGT, and to amend his RE code to allow reenlistment. He contended he was a good, hardworking, and productive citizen with no history of alcohol. He provided seven letters of support. (1) The Board addressed the applicant's requests on 23 February 2000. The ROP noted it appeared "the applicant was discharged under an inappropriate provision" of AR 635-200; there was no evidence the applicant's leadership had referred him into ADAPCP; such a referral was a primary requirement for separation under chapter 9. (2) Despite the foregoing finding, the Board determined there was no error with regard to the applicant's rank reductions because they were the result of NJP action. In addition, the Board concluded the applicant's chain of command could have separated him for a pattern of misconduct or commission of a serious offense (chapter 14, AR 635-200), due to his record of NJPs. Either provision of AR 635-200 would have resulted in RE codes of "3" (waiver required) or "4" (nonwaivable disqualification), and the Board found the applicant's service warranted a general discharge under honorable conditions. (3) The Board concluded, unless the applicant specifically requested to change to authority for separation and narrative reason for separation, it would take no action to revise either entry on the applicant's DD Form 214. The Board considered the applicant's good post-service conduct, but determined it was insufficient to warrant the granting of relief. 4. Although not required at the time, the September 2000 revision of AR 635-5 mandated the inclusion of remarks pertaining to separating Soldiers who received a less than honorable character of service; the regulation added the following comment: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 5. The applicant's commander initiated separation action under chapter 9, AR 635-200 and the separation authority approved the commander's recommendation. Soldiers were separated under chapter 9 when, after being referred into the ADAPCP, they had failed to respond to rehabilitation. a. While the applicant accepted two NJPs for alcohol-related offenses, the evidence of record does not confirm the applicant either volunteered for, or was command- referred into ADAPCP for alcohol abuse. b. In addition, the regulation required commanders to list in their notification memorandum a chronological history of the Soldier's alcohol abuse, description the circumstances of referral, a summary of rehabilitation efforts, and an explanation of how the Soldier had failed rehabilitative efforts. The notification provided by the applicant's commander did not include the aforementioned information and, in his recommendation to the separation authority, the commander reflected "N/A" for records of counseling and descriptions of rehabilitative attempts. c. Chapter 5 (Separation for Convenience of the Government), Section II (Secretarial Authority) permits the Board, acting on behalf of the Secretary of the Army, to revise the separation authority and narrative reason for separation based on a determination such a change is in the best interest of the Army. 6. The applicant argues, in effect, the fact his chain of command used an inappropriate provision to separate him warrants the upgrade of his character of service to honorable. In addition, apart from two alcohol-related incidents of misconduct, his service was otherwise honorable; he notes he voluntarily enlisted and his leadership permitted him to reenlist because he was a Soldier of honorable character. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions and medical concerns were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record, and agreed to show clemency by masking his narrative reason for separation. However, the Board also agreed the reason the applicant was discharge should remain a part of his official record. 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 amendment of the ABCMR's decision in Docket Number AR1999030406 on 23 February 2000. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 28 (Narrative Reason for Separation) on his DD Form 214 for the period 22 July 1983 by showing “Secretarial Authority.” 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 amending the separation authority on his DD Form 214. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Chapter 5 (Separation for the Convenience of the Government), Section II (Secretarial Authority) stated the separation of enlisted Soldiers for the convenience of the government was the prerogative of the Secretary of the Army. Separation under this authority was based on the determination that such a separation was in the best interests of the Army. c. Chapter 9 provided the authority and outlined procedures for discharging personnel without right to board action, based upon: (1) Alcohol abuse, such as the illegal, wrongful, or improper use of alcohol when: * the member was entitled to an exemption, per Table 6-1 (Exemption Policy), Columns B (listing when exemptions started) and C (showing what exemption covered) of AR 600-85 (ADAPCP), and * the commander determined further rehabilitation efforts were not practical, rendering the member a rehabilitation failure; this determination was to be made in consultation with the member's rehabilitation team (AR 600-85, paragraph 4-25 (Separation Actions)) * the member having been enrolled in ADAPCP (2) When a member had been referred into ADAPCP, he/she could be separated due to: * his/her inability or refusal to participate in, cooperate in, or successfully complete the ADAPCP program due to a lack of potential for continued Army service; or * long-term rehabilitation was necessary and the member would require transfer to a civilian medical facility (3) The notification procedure included a requirement for the commander to stated, in consultation with the rehabilitation team, a determination was made that further rehabilitation was not practical, thus rendering the member a rehabilitation failure. The notification was also to include a chronological history of the member's alcohol abuse, the circumstances of the member's referral into ADAPCP, and the steps taken to rehabilitate the member. (4) Characterization of service could either be honorable or under honorable conditions. 2. AR 600-85, in effect at the time, prescribed policies and procedures for implementing, operating, and evaluating the ADAPCP. This program was intended as a manpower conservation program and the policy was to provide a sustained effort to prevent alcohol and drug abuse. Commanders were to attempt to restore Soldiers to be effective and reliable after failing to function properly due to alcohol abuse. a. Soldier could enter the program via self-referral, or from being identified by his/her chain of command, through investigation/apprehension, and/or as a result of medical treatment. When military or civilian law enforcement identified the Soldier's alcohol abuse, the commander was to refer the Soldier to ADAPCP for initial screening. b. Rehabilitation of Soldiers was a command responsibility. All commanders were required to utilize all community resources in assisting Soldiers during rehabilitation. Paragraph 4-25 stated, when commanders, in consultation with ADAPCP staff, determined further rehabilitation measures were not practical, and that separation would be based on alcohol abuse, they were to ensure the regulation's legal restrictions (chapter 6 (Legal Aspects of the ADAPCP) were fulfilled and initiate separation action on a case-by-case basis. c. Chapter 6 outlined legal requirements and guidelines for ADAPCP. The intent of applicable laws and regulations was to protect the privacy and personal confidences of the ADAPCP client. Participation in ADAPCP could exempt Soldiers under certain circumstances. Table 6-1 (Exemption Policy) listed rules showing what exemptions may apply, depending on how the Soldier was identified as an alcohol abuser; when: * Soldier volunteered for help; exempted from the time he/she volunteered * emergency medical care referred the Soldier; exempted at the time of treatment * medically-referred; exempted as of time of diagnosis * command-referred; exempted from the time of the initial ADAPCP interview 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 on the basis of 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) AR20170019587 8 1