BOARD DATE: 10 December 2019 DOCKET NUMBER: AR20180005053 APPLICANT REQUESTS: An upgrade of his general discharge under honorable conditions to a fully honorable discharge. 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 was told his character of service could be changed 30 days after he was discharged. 3. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 5 June 1984 for 3 years. He held military occupational specialty 64C (Motor Transport Operator). He served in Alaska from 31 October 1984 through 18 November 1985. b. Urinalysis Test Results, dated 26 August 1985, show his urine specimen tested positive for Tetrahydrocannabinol (THC). c. A DA Form 2496 (Disposition Form) shows, on 9 September 1985, he was initially referred to the Community Counseling Center (CCC) and he was screened as a command referral for a positive urinalysis for THC. On 19 September 1985, he was placed in the Track II Program. During individual or group counseling sessions on 24, 25, and 27 September 1985, and 8 October 1985, he admitted he continued to abuse marijuana and he had no intention of terminating his drug abuse. The Acting Clinical Director, CCC, informed the applicant’s unit that due to continued substance abuse, further rehabilitation seemed impractical. He met the criteria for separation in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). d. On 17 September 1985, he accepted nonjudicial punishment for wrongfully using some amount of marijuana between 15 July and 15 August 1985. His punishment consisted of reduction from private first class/E-3 to private/E-2 (suspended until 17 March 1986), a forfeiture of pay and extra duty. e. Between 23 and 30 September 1985, he was counseled on three occasions for the following offenses, failure to be at his place of duty (twice) and a lack of respect for order and discipline. He was also counseled and told that he had good drive and ability, but he needed to be dependable, be on time, follow instructions and orders, and get it together before it was too late. f. A Supplemental Action, dated On 11 October 1985, shows the above punishment was vacated after he left his place of duty without permission and failed to be at formation. 4. On 30 October 1985, he was determined to be medically qualified for separation. 5. On 31 October 1985, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 9, AR 635-200 for Army Drug and Alcohol Prevention and Control Program (ADAPCP), due to failure of ADAPCP in accordance with AR 600-85 and his failure to remain free from the abuse of drugs and alcohol. He was also advised he could request treatment in a Department of Veterans Administration (VA) Medical Center. 6. On 31 October 1985, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for ADAPCP failure, 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 he understood, if he received a discharge that was less than honorable he could make application to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records (ABCMR) for upgrading. However, an act of consideration did not imply that his discharge would be upgraded. He requested treatment at a VA Treatment Center. 7. On 6 November 1985, the applicant’s immediate commander initiated separation action against him in accordance with chapter 9, AR 635-200, by reason of ADAPCP rehabilitation failure. The commander stated the applicant’s performance and conduct had been below acceptable standards and he had been counseled verbally on numerous occasions for being unable to perform his duties properly. He failed ADAPCP and refused the efforts of the rehabilitation team. The commander stated, “PFC Martinez (not the applicant’s name) responded to his counselor by stating he did not have any intentions to terminate his drug usage and did not want to remain in the Army. The commander recommended the issuance of a general discharge. 8. On 7 November 1985, the separation authority approved the applicant's discharge under the provisions of chapter 9, AR 635-200 and directed the applicant be furnished a General Discharge Certificate. The applicant was accordingly discharged on 18 November 1985. 9. His DD Form 214 confirms he was discharged under the provisions of chapter 9, AR 635-200 by reason of, "Alcohol Abuse" with a characterization of service of general, under honorable conditions. He completed a total of 1 year, 5 months, and 14 days of creditable active military service. His awards are listed as the Army Service Ribbon, Driver Badge, and Sharpshooter Marksmanship Qualification Badge Rifle (M-16) 10. On 11 August 1986, his DD Form 214 was corrected to show in: * Item 9 (Command to Which Transferred), the current entry was deleted and “NA” was added * Item 12i (Reserve Obligation Term Date), the current entry was deleted and the entry 00 00 00 was added * Item 19 (Mailing After Separation) was deleted and a new address was added 11. AR 635-200 authorized the discharge of Soldiers 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. 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. 12. The applicant contends he was told his discharge could be upgraded within 30 days of separation. During the discharge process, he acknowledged he understood, if he received a discharge that was less than honorable he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading, but, an act of consideration did not imply that his discharge would be upgraded. The Board decides each case individually upon its own merits. The U. S. Army does not have, nor has it ever had a policy to automatically upgrade discharges upon request. 13. During the discharge process, the applicant requested treatment at a VA Treatment Center. The applicant’s record is void of a response and there is no evidence of whether he was treated by the VA. 14. In reaching its determination, the Board can consider the applicant's petition, his request for VA treatment and whether he may or may not have received it, and his service record, in accordance with the published equity, injustice, or clemency determination guidance. 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 failure to complete ADAPCP, the contents of the separation packet 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 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): NA 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 sets forth the basic authority for the separation of enlisted personnel. a. 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 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. 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 an entry-level status and an uncharacterized description of service is required. b. 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. 3. Army Regulation 600-85, in effect at the time, governs the separation of Soldiers for alcohol and other drug abuse. It specifically stated Soldiers that are rehabilitation failures will be processed for administrative separation when the unit commander determines that further rehabilitation efforts are not practical and that rehabilitation is a failure. 4. AR 600-85 currently provides that all Soldiers to include ARNG and USAR Soldiers ordered to active duty, under Title 10 USC, who are identified as drug abusers, without exception, will be referred to the ASAP for evaluation. a. Nondependent drug users will be enrolled in the ASAP if such enrollment is clinically recommended. b. Soldiers diagnosed as drug dependent should be detoxified and given appropriate medical treatment. These Soldiers generally do not have potential for continued military Service and should not be retained. These Soldiers will be referred to a VA hospital or a civilian program by the ASAP counselor to continue (or to initiate) their rehabilitation. 5. 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. 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 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. 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) AR20180005053 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005053 7 ABCMR Record of Proceedings (cont) AR20180005053 5