ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  19 July 2019

	DOCKET NUMBER:  AR20180007081

APPLICANT REQUESTS:  an upgrade to his under honorable conditions (general) discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  DD Form 149 (Application for Correction of Military Record). 

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 that he does not think that it was an unjust, he was given a choice to leave the military, stay in his current unit or to change units.  He states that he chose to leave.  He was told that he could request for upgrades after he left the service according to the applicant.

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army (RA) on 24 October 1984.

	b.  A letter from the Clinical Director dated 9 September 1985, stating that the applicant was command referred for ethanol (ETOH) and after receiving two driving under the influence (DUI) charges.  The applicant was enrolled in Track II on 2 August 1985 and was seen three times and two consults were made.  He states that he did not desire help for his ETOH and was unwilling to comply with treatment goals and he wanted out of the Army according to the Director.  A consultation took place between the applicant’s commander and the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) counselor and it was determined by the commander that further rehabilitation efforts were not practical.  The applicant was cleared for any administrative or discharge action. 

	c.  On 24 September 1985, the applicant's commander notified the applicant that he was initiating actions to separate him under the provisions of Army Regulation (AR) 635-200 Personnel Separations – Enlisted Personnel), Chapter 9, for alcohol abuse and rehabilitation failure.  

	d.  The applicant acknowledged the notification with his signature.  On 24 September 1985, he consulted with legal counsel on the basis for the contemplated action to accomplish his separation for alcohol or other drug abuse rehabilitation failure under the provisions of AR 635-200, chapter 9, and its effects of the rights available to him and the effect of any action taken by him in waiving his rights.  In his request, he acknowledged:

* he would not submit statements on his own behalf for consideration
* he requested treatment in a Veterans Affairs Medical Center

	e.  The applicant's commander formally recommended the applicant's separation from service under the provisions of AR 635-200, Chapter 9, by reason of alcohol abuse. 

	f.  The separation authority approved the applicant's request for discharge under the provisions of Chapter 9, AR 635-200, for alcohol abuse, and ordered the applicant be issued a General Discharge Certificate.

	g.  On 27 September 1985, the applicant was discharged under the provisions of AR 635-200, Chapter 9, by reason of alcohol abuse with an under honorable conditions discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 months and 24 days of active service.  It also shows he was awarded or authorized the:

* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Hand Grenade Badge (1st Class)

	h.  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, discharges under the provisions of chapter 10 of AR 635-200 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of honorable service completed prior to multiple DUI offenses, the Board concluded that the characterization of service received at the time of separation was appropriate.

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 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) provides that 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 (general Discharge) provides that 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 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 entry-level status and an uncharacterized description of service is required. 

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 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)	 AR20180007081


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