ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20180011975 APPLICANT REQUESTS: an upgrade to his under honorable conditions (general) discharge to an honorable discharge and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) * Certificate of Achievement, 11 May 2018 to 11 July 2018 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 has successfully completed the Substance Abuse Treatment Program (SATP) at the Central Texas Veterans Health Care System in Temple, TX. He is now asking for an upgrade to honorable. 3. The applicant provides a copy of his Certificate of Achievement for the SATP. The certificate shows that he participated in the program from 11 May 2018 to 11 July 2018, at the Central Texas Veterans Health Care System in Temple, TX. 4. A review of the applicant’s service records shows: a. Having had prior service in the Army National Guard, he enlisted in the Regular Army on 7 September 1988. b. He served in Panama from 13 November 1989 to 26 July 1990 as an 11B (Infantryman). c. By memorandum from the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) control officer, dated 26 April 1990, Subject: Positive Urine Sample for Unprescribed Drugs, to the Commander of B Company, 5th Battalion, 87th Infantry, a. Fort Clayton, Panama, recommends that the applicant attend the ADAPCP, for a positive urinalysis for THC and cocaine. e. By memorandum from the ADAPCP clinical director, dated 7 June 1990, Subject: Assessment Summary, gives a summary on the applicant’s enrollment in the ADAPCP. It states that he was declared by a competent commander to be cocaine dependent and a rehabilitative failure. The memorandum noted that in accordance with AR 600-85 (Alcohol and Drug Abuse Prevention and Control Program), paragraph d, he was to be processed out of military service. It further noted that due to the severity of his diagnosis, short term rehabilitation will prove to be nonproductive and his history suggests high risk for relapse. f. The applicant’s mental evaluation noted that the applicant is cocaine dependent, carries a diagnosis of adjustment disorder with mild depression and has a passive- aggressive personality disorder. It states that due to his disorder, it is evident that he will have longstanding difficulties adapting emotionally to military life. g. On 18 June 1990, he accepted nonjudicial punishment under Article 15 for wrongful use of cocaine. His punishment included a reduction to private/E-1, forfeiture of $366 per month for two months, 45 days extra duty and 45 days of restriction. h. On 11 July 1990, the applicant’s commander notified him of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 9, paragraph 9-2, for cocaine dependency. The applicant had a lack of potential for continued Army service and rehabilitation efforts are no longer practical. He recommended a General Discharge Certificate. i. On 11 July 1990, the applicant acknowledged receipt of the commander’s notification. He stated that he had been advised if his rights, been advised by his commander initiating the action and that he understood. j. On 11 July 1990, after consulting with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 9 he acknowledged: * that he has been advised by consulting counsel for the action of separation for alcohol rehabilitation failure * he understood if he had 6 years of total active and reserve military service at separation, under the provisions of AR 635-200, chapter 9, he is entitled to have his case heard by an administrative separation board * statements on his own behalf are not submitted * he requests consulting counsel as his military counsel * he understood that he will receive an Honorable Discharge Certificate * * he understood that he may, up until the separation authority ordered, directs, or approves his separation, withdraw the waiver of any of the rights and request an administrative separation board, if authorized, hear his case * he understood that he would be ineligible to apply for enlistment in the United Army States Army for 2 years after discharge k. On 11 July 1990, the applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 9, paragraph 9-2, by reason of drug abuse rehabilitation failure. l. On 11 July 1990, consistent with the commanders recommendation the separation authority directed that the applicant be discharged from the Army under the provisions of AR 635-200, chapter 9, paragraph 9-2, for Alcohol or Other Drug Abuse Rehabilitation Failure and issued a General Discharge Certificate. m. On 27 July 1990, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under honorable conditions (general). The DD Form 214 shows he was credited with completing 1 year, 10 months, and 21 days of active service this period. It also shows he was awarded or authorized: * Army Service Ribbon * Army Achievement Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar * Armed Forces Expeditionary Medal n. 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, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6 By regulation, AR 635-200, member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program and if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. 7. 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 for consideration of discharge upgrade requests, the Board determined that it could reach and a fair and equitable decision in the case without a personal appearance by the applicant. The Board considered the applicant's request, record of service, nature of his misconduct, failure of the drug rehabilitation process and the reason for his separation. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board found no error or injustice which would warrant making a change to his 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. 9/9/2019 X CHAIRPERSON Signed by: 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. Army Regulation 635-200 (Personnel Separations-Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable) provides that an honorable discharge is a separation with honor. 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) a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the member’s separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 9 (Separation for Alcohol or Other Drug Abuse) provides the authority and outlines the procedures for discharging personnel without right to board action. Discharge is based on alcohol or other drug abuse such as the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug when the member is entitled to exemption per AR 600-85, table 6-1, columns B and C, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and the commander determines that further rehabilitation efforts are not practical, rendering the member a rehabilitation failure. The determination will be made in consultation with the rehabilitation team. d. Paragraph 9-2 states that a member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program and if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. 3. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the a. evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires 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.