ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 July 2019

	DOCKET NUMBER:  AR20180008334


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States)
* Separation Transfer Point Processing Schedule

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 filled out a DD Form 293 on 9 February 1984 but never heard anything back on this request.  He never followed up on it until about 5-10 years ago.  When he failed to have it reviewed, it was denied because too much time had passed.  He came across a copy of the DD Form 293 that he had filled out and sent it in.  With this new evidence, he would like to have it reviewed.  He was very young at the time and didn't think his upgrade discharge request was important.  Now that’s he’s older, God and his country means more to him now than 34 years ago.

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

	a.  He enlisted in the Regular Army on 26 November 1982.

	b.  He served in Germany from 2 May 1983 to 17 January 1984.

	c.  On 8 November 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, on or about 12 October 1983, knowingly and wrongfully use a controlled substance, to wit, marijuana.  His punishment consisted in part of reduction to private /E-2.

	d.  On 2 December 1983, a memorandum in response to the unit request for information pertaining to the applicant ADAPCP (Alcohol and Drug Abuse Prevention and Control Program) rehabilitation activities reflects that the applicant was enrolled in the ADAPCP on 29 November 1983 resulting from suspected drug use.  A health and welfare check on 1 December 1983 found to have hash in his area.  Soldier’s potential for successful rehabilitation is poor due to a lack of motivation to change his habit of hash use.  He is a Chapter 9 (Drug Abuse – Rehabilitation Failure) candidate.

	e.  On 2 December 1983, he accepted NJP under the provisions of Article 15 for on or about 1 December 1983, wrongfully possess half gram more or less of marijuana in the hashish form.  His punishment consisted in part of reduction to private /E-1.

	f.  On 12 December 1983, the Report of Psychiatric Evaluation stated that applicant had a drug problem.  He was in the ADAPCP program but he was declared a failure.  There was no evidence of any formal thought disorder of loose associations.  There was no evidence of perceptual hallucinations.  The applicant denied suicidal/homicidal ideations.  

	g.  On 21 December 1983, 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.

	h.  On 22 December 1983, 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
	
i. On 27 December 1983, the commander recommended separation under 
AR 635-200, chapter 9-1b (alcohol or other drug abuse rehabilitation failure).

	j.  On 28 December 1983, the separation authority approved separation under 
AR 635-200, chapter 9 with the issuance of an under honorable conditions 
(general) discharge.

	k.  On 18 January 1984, 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, under honorable condition (general).  It shows he completed 1 year, 1 month, and 23 days of total active service.

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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon a relatively short term of honorable service completed prior to multiple drug offenses and the applicant already receiving a General Discharge, the Board concluded there was insufficient evidence to show that an error or injustice was present which would warrant making a change to the characterization of service.


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)	 AR20180008334


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