IN THE CASE OF: BOARD DATE: 10 January 2020 DOCKET NUMBER: AR20180004621 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 8 February 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 was not given the opportunity to go to rehabilitation. He contends the Board should look at positive urinalysis for the period April 1982 through October 1983. He has raised a family, has had no driving under the influence (DUI) charges or arrests, and has retired after 28 years from the school district. 3. The applicant enlisted in the Regular Army on 5 January 1982. 4. The applicant accepted nonjudicial punishment (NJP) on 10 March 1982, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for possessing marijuana, on or about 9 March 1982. 5. The applicant was enrolled in an Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) rehabilitation program. 6. During a routine urinalysis conducted on 25 May 1983, the applicant submitted a urine sample that when screened, tested positive for marijuana. 7. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following dates: * on 29 July 1983, for disobeying a lawful order from a commissioned office not to have alcoholic beverages in the troop billets, on or about 16 July 1983 * on 3 October 1983, for disobeying a lawful order from a commissioned office to not consume alcoholic beverages on Confident Enterprise field exercise, on or about 24 September 1983 8. The Clinical Director of the Crailsheim (Germany) Sub-Community recommended the applicant be declared a rehabilitation failure based on his chronic alcohol abuse and NJP for consuming alcohol in the field and his positive urinalysis result. The director stated that command consultations indicated that the applicant was a "poor performer" and unresponsive to work responsibilities. The applicant resisted any real attempts at changing his behavior. Throughout counseling, the applicant minimized his illicit drug use and vehemently attempted to defend and rationalize his alcohol abuse. 9. The applicant was afforded a Mental Status Evaluation on 19 October 1983 that found him suffering from no mental health issues. He was found to meet retention standards and he was cleared to participate in any administrative actions. 10. The applicant's unit commander initiated separation proceedings on 10 November 1983, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9. The applicant acknowledged this notification and waived his rights to consult with counsel, submit a statement on his own behalf, and to request treatment in a Department of Veterans Affairs (VA) medical center. 11. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 9. The separation authority approved the separation for drug and/or alcohol abuse on 19 November 1983. He directed the applicant be afforded a general discharge. 12. The applicant was discharged on 9 December 1983, under the provisions of Army Regulation 635-200, Chapter 9, for alcohol abuse rehabilitation failure. His DD Form 214 confirms his service was characterized as under honorable conditions (general). 13. The evidence of record clearly indicates that not only did the applicant receive rehabilitation counseling for his alcohol abuse but that he minimized his illicit drug use and vehemently attempted to defend and rationalize his alcohol abuse. He also declined to consider rehabilitation care through the VA. 14. The Board may consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, his enrollment in ADAPCP and the Clinical Director recommendation and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference, with his statement, in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. c. Chapter 9 sets forth the basic authority for the separation of enlisted personnel. because of alcohol or other drug abuse. A member who has been referred to 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. The service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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) AR20180004621 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180004621 5 ABCMR Record of Proceedings (cont) AR20180004621 4