ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20180007764 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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, in effect, expecting marijuana to be out of his system within 30 days is not reasonable. He states newer science/studies shows it can take up to 90 days. He is requesting his discharge be changed to honorable. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army 28 April 1981. b. He served in Germany from 19 June 1983 to 17 January 1985. c. He accepted nonjudicial punishment (NJP) on 21 October 1981 under the provisions of Article 15, on or about 7 October 1981, wrongfully having in his possession marijuana. d. He accepted NJP under the provisions of Article 15 on 24 August 1984, on or about 25 May 1984, knowingly and wrongfully use marijuana in the hashish form, a controlled substance. His punishment consisted in part of reduction to private /E-1. e. The applicant's continued abuse of drugs led to his enrollment in the Community Counseling Center (CCC); however, he showed no progress and continued to abuse drugs. His commander declared him CCC failure. f. On 21 December 1984, applicant was notified by his immediate commander’s intent to separate him under the provisions of Army Regulation (AR) 635-200, (Personnel Separation – Enlisted Personnel) chapter 9 (alcohol or other drug abuse rehabilitation failure) for abuse of drugs. g. On 9 January 1985, he was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense under the provisions of AR 635-200, chapter 9, its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he had been afforded the opportunity to consult counsel * that he was being consider for service characterization under honorable conditions (general) * understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life h. The separation authority approved separation under AR 635-200, chapter 9 with the issuance of an under honorable conditions (general) discharge on an unknown date. i. On 18 January 1985, the applicant 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. It shows he completed 3 year, 8 months, and 21 days of active service. It also shows he was awarded or authorized. * Army Service Ribbon * Good Conduct Medal * Overseas Service Ribbon 4. On 29 May 1987, the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, has determined that he was properly and equitably discharged. Accordingly, the Secretary of the Army has directed that his request for a change in the character and/or reason of his discharge has been denied. 5. By regulation AR 635-200, members who is enrolled in the ADAPCP (Alcohol and Drug Abuse Prevention and Control Program) 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. Based upon the multiple drug offenses and a lack of progress at the rehabilitative measures taken by the command at the time, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 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) AR20180007764 5 1