ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20180011336 APPLICANT REQUESTS: an upgrade of his general 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, in effect, his discharge should be changed to an honorable. 3. A review of the applicant's service record shows: a. He enlisted in the Army on 11 May 1982. b. He accepted nonjudicial punishment (NJP) on 26 February 1985 for operating a passenger car while drunk on 15 February 1985. c. He accepted NJP on 26 August 1985 for wrongfully using some amount of marijuana, a schedule I controlled substance between 5 July 1985 and 5 August 1985. He was reduced to the grade of PV2/E-2. d. He accepted nonjudicial punishment (NJP) on 1 October 1985 for disobeying a lawful order given by the commanding general, for escaping custody of military police, and for operating a vehicle while drunk, all of which took place on 23 August 1985. e. Headquarters, U.S. Army Air Defense Center and Fort Bliss memorandum, dated 15 October 1985, signed by the social services assistant, Subject: Rehabilitative Failure Determination states the applicant: * was command referred to the Alcohol Drug and Alcohol Prevention Control Program (ADAPCP) on 10 April 1985 following a DWI incident * was enrolled in the active phase of the treatment program and participated marginally in the program, as evidenced by his continued alcohol and THC usage * his refusal to perform therapeutic tasks negative group behavior, and continued usage of drugs contributed to his marginal participation * the ADAPCP staff considers him to be a rehabilitation failure according to criteria of AR 600-85 f. It is unknown the exact date when the applicant was notified of initiation of separation proceedings under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 9 for alcohol or other drug abuse rehabilitation failure, with a characterization of service of honorable or general under honorable conditions. g. The applicant acknowledged receipt of the commander's intent to separate him on 22 October 1985. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, 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 that he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded h. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him for alcohol or other drug abuse rehabilitation failure in accordance with AR 635-200, chapter 9. His chain of command recommended approval. i. It is unknown the exact date when the separation authority approved the applicant's discharge. His DD Form 214 confirms he was discharged on 22 November 1985 under the provisions of AR 635-200, paragraph 9, for alcohol abuse - rehabilitation failure, separation code JPD, with his service characterized as general under honorable conditions. He completed 3 years, 6 month, and 12 days of active service. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the pattern of misconduct and the applicant already receiving a general discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s 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) AR20180011336 4 1