ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019+98 DOCKET NUMBER: AR20190003914 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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, his reason for separation is listed as "Drug Abuse Rehabilitation Failure." He never was given the opportunity nor offered rehabilitation treatment. 3. The applicant enlisted in the U.S. Army Reserve on 12 August 1980. He entered active duty on 15 August 1980, completed his initial entry training, and was released from active duty on 18 November 1980. He was discharged on 2 March 1981 for the purpose of immediate enlistment in the Regular Army. 4. He enlisted in the Regular Army on 3 March 1981. He was assigned for overseas duty in the Federal Republic of Germany. He arrived in Germany on 17 March 1981. 5. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated infractions: * on 7 October 1981, for absenting himself from his appointed place of duty, on or about 4 October 1981 * on 9 November 1981, for being found sleeping at his post, on or about 1 November 1981 6. A DA Form 5180-R (Urinalysis Custody and Report Record), dated 17 June 1983, shows that during a random urinalysis test, the applicant provided a urine sample that tested positive for Tetrahydrocannabinol (THC). 7. The complete facts surrounding the applicant's discharge are not available for review, however a memo from the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Rehabilitation Activities Clinical Director, dated 27 June 1983, shows he had been enrolled in the ADAPCP program. The memo further states: a. The applicant was enrolled in the program in 1981. b. He was enrolled in the Track II program and he participated in one individual counseling session. c. He exhibited motivation to discontinue the use of cannabis. d. His potential for success appeared to be good. 8. The applicant was notified on 28 June 1983 that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9, as an alcohol or drug abuse rehabilitative failure. The applicant acknowledged receipt of the notification on 28 June 1983. He waived his right to consult with counsel and he elected not to make a statement in his own behalf. 9. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 9, by reason of the applicant's alcohol or drug abuse rehabilitation failure. The separation authority approved the recommendation for discharge on 6 July 1983 and directed the applicant be issued a DD Form 257A (General Discharge Certificate). 10. The applicant was discharged on 5 August 1983, under the provisions of Army Regulation 635-200, Chapter 9, due to drug abuse – rehabilitation failure. He completed 2 years, 5 months, and 3 days of net active service this period and his service was characterized as under honorable condition (general). 11. Army Regulation 635-200 provides the authority for separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable, General, and Under Other Than Honorable Condition Discharge Certificates. 12. The Board should consider the applicant's provided statement 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 board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. The Board found evidence of the applicant’s continued misconduct pursuant to rehabilitation services, despite the applicant’s statement that he was never given the opportunity for rehabilitation. The Board found limited evidence of remorse or post-service honorable conduct that might have mitigated the discharge characterization. Therefore, the Board agreed that the applicant’s discharge characterization is 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a 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 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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. 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. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190003914 6 1