ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20180006297 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 requests his type of discharge be upgraded from under honorable conditions (general) to honorable. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army (RA) on 3 August 1978. DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United States) is not available for review for this period. b. On 13 March 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, on or about 5 March 1981, knowingly and wrongfully use a controlled substance, to wit, marijuana. His punishment consisted, in part of, reduction to private /E-2. c. On 1 July 1981, he accepted NJP under the provisions of Article 15, on or about 15 June 1981, assault of SGT X___ton. d. On 2 April 1982, he received a letter of rehabilitation failure from ADAPCP (Alcohol and Drug Abuse Prevention and Control Program). He was admitted to the ADAPCP on 30 October 1981. He participated in a treatment program of awareness education, group, and individual therapy. At the present time, his progress was evaluated to be unsatisfactory and he should be considered a rehabilitation failure. e. On 8 May 1982, applicant was notified by his immediate commander’s intent to separate him under the provisions of AR 635-200, chapter 9-4a (alcohol or other drug abuse rehabilitation failure) for abuse of drugs. He was declared a rehabilitative failure under the Army ADAPCP. He repeated had incidents involving alcohol and was unable to perform his military responsibilities in a military manner. f. On 10 May 1982, he acknowledged the notification of the proposed action under the provisions of AR 635-200, chapter 9-4a, its effect, of the rights available to him. He understood that military legal counsel for consultation will be available to assist his upon request. He desire the military legal counsel for consultation be appointed to assist him. g. On 10 May 1982, he submitted an statement to the proposed chapter 9 discharge. He had at all times tried to do a good job in the Army. He does not believe his drinking had affected his performance as a Soldier. He had only a short period of time in the Army. His expiration term of service (ETS) date was 2 August 1982. He would like to be able to complete his obligation to the Army and be discharged with an honorable discharge. If he is discharged under Chapter 9-4a, he respectfully requested that his discharge be honorable. h. On 13 May 1982, applicant was recommended by his immediate commander’s intent to separate him under the provisions of AR 635-200, chapter 9-4a (alcohol or other drug abuse rehabilitation failure) for abuse of drugs. i. On 18 May 1982, the separation authority approved separation under AR 635-200, chapter 9-4a with the issuance of an under honorable conditions (general) discharge. j. On 1 June 1982, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for drug abuse rehabilitating failure under the provisions of AR 635-200, Chapter 9-4a with an under honorable conditions (general) discharge. It shows he completed 2 years, 9 months, and 25 days of total active service, and had lost time from 19820511-19820514 (3 days). 4. 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. 5. By regulation AR 635-200, members 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 in the following circumstances: a. There is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. b. Long-term rehabilitation is necessary and the member is transferred to a civilian medical facility for rehabilitation. c. Nothing in this section prevents separation of a member who has been referred to such a program under any other provision of this regulation. 6. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. Based upon the pattern of misconduct which led to the applicant separation, as well as some involving violent behavior towards others, the Board concluded that the characterization of service received at the time of separation was appropriate. Additionally, the Board noted that the applicant failed to provide any post-service achievements or character evidence which would have shown he learned and had grown from the events leading to his discharge and which may have provided some evidence to consider for clemency. 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. AR 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 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 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. ABCMR Record of Proceedings (cont) AR20180006297 4 1