ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180004845 APPLICANT REQUESTS: a change in his narrative reason for discharge and an upgrade of discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 would like the narrative as stated removed because it is false. The determination of his discharge was based on a single urinalysis test that indicated “positive” for THC (Tetrahydrocannabino). He knew the results of the urine test had to be incorrect because he had in no way used any illegal substance prior to the testing. Some years later after his separation he received a letter from the Army confirming the inaccuracy and faulty determination of the urinalysis test. He was wrongly discharged and his service was honorable. He believes that all negative characterizations and conditions should be removed from his service record. He also believes that his discharge should be upgraded to honorable. He has never been a drug user or abuser, however, his service records falsely reflects otherwise. This has been an injustice against his character for too long. The Army’s records and evidence supports his above statements. 3. The applicant’s service records shows: a. The applicant enlisted in the Regular Army on 19 May 1982. b. On 5 May 1983, he accepted nonjudicial punishment (NJP) under Article 15 for disrespectful language towards a superior noncommissioned officer. c. On 21 May 1983, DA Form 3975 (Military Police Report) shows he was arrested by the Oklahoma State Patrol for driving under the influence. He was arraigned in Comanche County Court to reappear in July 1983. d. On 2 June 1983, DA Form 5180-R (Laboratory Results) shows his specimen tested positive for Tetrahydrocannabinol (THC). e. On 22 June 1983, he accepted NJP for wrongful use of marijuana between the dates of 21 May to 31 May 1983. His punishment consisted, in part, of reduction to private/(E-2) and forfeiture of $321.00 for one month. f. The Clinical Director of the Fort Sill Community Counseling Center submitted a statement regarding the applicant. He stated the applicant had been enrolled in the Fort Sill Alcohol and Drug Prevention and Control Program (ADAPCP) since 10 June 1983. He was an investigation/ apprehension referral. He was seen once in individual counseling sessions. A consultation between an ADAPCP Counselor and unit commander was held on 10 June 1983. It was determined that further rehabilitation efforts are not practical. He was cleared for any administrative action now pending. g. On 26 July 1983, the applicant underwent a mental status evaluation. His DA Form 3822-R (Report of Mental Status Evaluation) shows he met retention standards and he was psychiatrically cleared for whatever administrative action may be deemed appropriate by command. h. The applicant was notified of initiation of separation proceedings on 31 August 1983, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 9 for alcohol or other drug abuse rehabilitation failure, with a characterization of service of honorable or general under honorable conditions. The reasons for the commander's proposed action were the applicant's rehabilitative drug failure, inefficient work history, and apathy towards the United States Army. i. The applicant acknowledged receipt of the commander's intent to separate him on 31 August 1983. 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. He acknowledged that he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded h. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him for drug abuse rehabilitation failure. The commander stated that the applicant had indicated by his performance and failure at rehabilitation that he either lacked the desire or ability to be rehabilitated. In either case, he was not and likely will not become a productive Soldier. His chain of command recommended approval. i. On 8 September 1983, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 9, with his service characterized as general under honorable conditions. The applicant was discharged accordingly on 14 September 1983. j. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 9 for "drug abuse - rehabilitation failure" with a separation code of JPC, , with his service characterized as general, under honorable conditions. He completed 1 year, 3 months and 26 days. He was awarded or authorized the: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification badge with Grenade Bar k. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 4. By regulation/directive: a. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. b. AR 635-5, the version of the regulation in effect at the time states, block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can be checked against the cross reference in AR 635-5-1. c. AR 635-5-1, the version in effect at the time states Separation Code JPC is assigned to Soldiers separating under the provisions of AR 635-200, paragraph 9 for "drug abuse - rehabilitation failure.” 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 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. He was discharged for failing to rehabilitate and was provided an Under Honorable Conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization and reason for separation are warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 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 635-5 (Separation Documents), chapter 2, in effect at the time, established standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. It is important that information entered on the form should be complete and accurate. Chapter 2 contained guidance for preparation of the DD Form 214. The version of the regulation in effect at the time states, block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can be checked against the cross reference in AR 635-5-1 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) AR20180004845 5 1