ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190004136 APPLICANT REQUESTS: The applicant requests an upgrade of his general characterization of service to honorable and correction of his narrative reason for separation from misconduct to something more favorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character Reference Statements (x4) 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 his general discharge is inequitable because he was discharged for a pattern of misconduct. Under current standards he would be allowed the opportunity to attend medical counseling, and alcohol/drug abuse counseling. Had these opportunities been available he would have taken advantage of them. However, neither were readily available at the time of his discharge. There is no doubt in his mine that he would have received assistance and an honorable discharge. He provides a statement indicating he wanted to be a career Soldier and he did well in Germany. He was involved in a “Top Gun,” of the 17th Brigade. He still goes to 1st Battalion, 36th Field Artillery reunions. He did a few things after coming back from Germany. He would like an honorable discharge in lieu of a general discharge. 3. On 2 October 1986, he enlisted in the Regular Army for 4 years and he held military occupational specialty (MOS) 13B (Cannon Crewmember). He was assigned to Germany from 22 January 1987 to 10 January 1989. On 6 March 1989, he was assigned to Fort Campbell, KY, with duties in his MOS. 4. A Medical Record – Supplemental Medical Data Form that was contained in the applicant’s medical record that shows he received a “Community Counseling Center (CCC) Medical Evaluation [Currently Behavior Health], on 20 October 1987. This document shows he was enrolled in Track II [of the Alcohol Drug Prevention and Control Program (ADAPCP)] since October 1987 for alcohol abuse control. He was prescribed Antabuse 500 milligram (1/2 tablet), counseling, and he was pending Track III admission. 5. A Madisonville Police Department, Uniform Citation, shows on 25 March 1989, the applicant was arrested for driving under the influence (DUI), he failed two field tests given by the arresting officer. His blood alcohol content (BAC) level was .17 percent. 6. On 28 March 1989, in a Memorandum of Instruction (MOI), the applicants was notified by his battalion commander that he would attend any alcohol abuse training ordered by his battery commander or the appropriate courts. On the same date, he acknowledged receipt of this memorandum. 7. On 29 March 1989, he was notified by the Garrison Commander, that his post driving privileges were suspended for 12 months. Reinstatement was not automatic. He must complete remedial drivers training, the ADAPCP, and make a written request to the Commanding General through his chain of command after the revocation period was over. 8. An Arrest Report shows on 11 April 1989, the applicant was arrested at the Unicorn Lounge, and was charged with public drunkenness and resisting arrest. He was convicted by a civil court on 14 April 1989. He was issued a Memorandum of Reprimand, dated 14 April 1989, for this civil offense as an administrative action. He acknowledged receipt and declined to submit statements in rebuttal. It was filed permanently in his official record. 9. On 18 April 1989, he was issued a Memorandum of Admonition for both the March and April 1989 incidents. This memorandum states it is believed he had an alcohol problem and it was mandatory that he attend a short term outpatient program. Failure to do so could lead to more severe action and potential termination with a less than honorable discharge. This admonition was administered as an administrative action. He was advised it would be temporarily filed in his Military Personnel Records Jacket for a period of 1 year or until he left Fort Campbell. However, any matters submitted in rebuttal would be considered before this action was taken. 10. On 23 May 1989, a Bar to Reenlistment was approved against the applicant, the bases listed for the bar are: * DA Form 4856, dated 12 April 1989, for DUI, arrest for public intoxication * Memorandum of Reprimand, dated 18 April 1989, for conviction of DUI * Memorandum of Admonition, dated 18 April 1989, for DUI and public intoxication * LOI (in effect MOI), dated 28 March 1989 * Soldier should be barred from reenlistment due to DUI arrest and public intoxication 11. A Disposition Form, dated 16 June 1989, shows he was notified by the Garrison Commander, that his post driving privileges were suspended/revoked for 60 months, as a result of DUI with a BAC of .14 percent. The applicant acknowledged receipt of this action. 12. A Report of Mental Status Evaluation, dated 16 June 1989, shows the applicant was mentally cleared or separation. 13. On 21 June 1989, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for violating a lawful general regulation by operating a motor vehicle on post while his driving privileges were suspended. His punishment consisted of reduction to pay grade E-1, extra duty, restriction, and a forfeiture of pay. 14. The applicant’s immediate notified him of his intent to initiate separation action against him in accordance with chapter 14, Army Regulation 635-200 by reason of misconduct. The specific reasons cited are that all attempts to make him a useful Soldier had failed. He had been given every opportunity to improve his conduct/duty performance and he was counseled to no avail. All attempts toward rehabilitating him had met with negative results. 15. On 17 July 1989, the applicant acknowledged receipt of the commander's intent to separate him for misconduct. He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and of the rights available to him. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. No statements were submitted in his behalf. 16. On 18 July 1989, the applicant's immediate commander initiated separation action against him in accordance with chapter 14, Army Regulation 635-200, for a pattern of misconduct with a general discharge. The commander stated the applicant had been arrested for two DUI’s and public intoxication. He also violated a lawful general regulation by driving when his driving privileges were suspended when arrested for the second DUI. On 18 July 1989, the intermediate commander also recommended separation with a general discharge. 17. On 20 July 1989, the separation authority approved the applicant's discharge under the provisions of chapter 14, AR 635-200, by reason of misconduct-pattern of misconduct, with the issuance of a General Discharge Certificate. 18. His DD Form 214 confirms he was discharged, on 26 July 1989, under the provisions of chapter 14, AR 635-200 with service characterized as under honorable conditions (General). This form further shows he completed 2 years, 9 months, and 25 days of net active service this period. His awards are listed as the Army Service Ribbon, Overseas Service Ribbon, Army Achievement Medal (2nd Oak Leaf Cluster), and Expert Marksmanship Qualification Badge Hand Grenade. His DD Form 214 also shows: * the separation program designator (SPD) code of "JKM" * narrative reason for separation as "Misconduct-Pattern of Misconduct" 19. The applicant provided statements from: a. Pastor RL, Master Sergeant (MSG) Retired stating he has known the applicant for 6 years and he interacts with him on almost a daily basis. Since the applicant has become a member of their congregation he has shown devotion not only to his beliefs, but to the other members of the congregation and the community in general. As both his pastor and a retired MSG, he and the applicant have had numerous conversations about his military service and the regrets he has about his behavior while in the Army. Since his discharge, he has tried and succeeded in becoming a productive member of the community through his family, beliefs, and work. This pastor believes he deserves not only consideration, but a change of his general discharge to an honorable discharge and removal of his narrative reason for separation. b. Mr. SN, Nelson’s Drafting and Design stating he has known the applicant for approximately 25 years. Throughout that time, he has known him to be dependable and helpful to anyone who needs assistance. He has always been compassionate and caring to those who were experiencing misfortune. He is professional, dependable, and trustworthy. The applicant has helped him with maintaining his home. He is honored to call the applicant a personal friend. c. First Sergeant R (Retired) states he was the applicants section chief during his time in Augsburg Germany in the middle 80s. During that time, his duty performance was outstanding and he recommends him for any position that he is seeking. d. Mr. PJB stating it was an honor to know the applicant between 1987 and 1989 when they served together in Augsburg Germany. During that time he knew him to be an honest, hardworking Soldier who never failed his fellow Soldiers. He was an integral part of his gun section's success which was quantifiably the best gun section in the 7th Corps Artillery. The applicant was reliable and he had an easy going nature. He would go the extra mile for the team. It would be his pleasure to work and serve with the applicant again. 20. Regarding his contention that under current standards he would have been allowed the opportunity to attend medical counseling, and alcohol/drug abuse counseling. His record shows: a. He was provided the opportunity and enrolled in drug and alcohol abuse counseling on two occasions. On October 1987, he was enrolled in Track II of ADAPCP for alcohol abuse, prescribed Antabuse for treatment of his illness and pending enrollment in Track III. During March 1989, the applicant was ordered to attend ADAPCP. However, it appears he continued to drink and his record does not show whether he completed ADAPCP; however, his record also shows in March 1989, he was caught DUI with a blood alcohol content level of .17 percent. His post driving privileges were suspended. He was required to complete remedial drivers training, ADAPCP and acknowledged he understood. He was arrested in April 1989 for public drunkenness and resisting arrest and in June 1989 his driving privileges were suspended/revoked for 60 months, as a result of DUI with a blood alcohol content of .14 percent. b. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 21. He completed 2 years, 9 months, and 25 days of his 4 year enlistment obligation and submits statements in support of his application of individuals who attest to his character, work ethic and trustworthiness both during service and post-service. In reaching its determination, the Board can consider the applicant's petition, his character references, and his service record in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, his civil conviction, bar to reenlistment and whether to apply clemency. The Board considered his enrollment on ADAPCP, but found no record of his completion. The Board considered the letters of reference provided by the applicant, but found no further evidence of post-service achievements. The Board found insufficient in-service mitigation and that the letters provided were not sufficient to overcome the applicant’s pattern of misconduct and grant clemency. Based on a preponderance of evidence, the Board determined that the character of service and narrative reason the applicant received upon discharge was not in error or unjust. 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 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. Army Regulation 635-200, 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. 4. AR 635-5 (Separation Documents) prescribes policies and procedures for completion of the DD Form 214. It states, based on the specific separation authority, the source of the SPD code and narrative reason for separation was AR 635-5-1 (SPD Codes). 4. AR 635-5-1, in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identified the SPD code of "JKM" as being associated with separations under the provisions of chapter 14, AR 635-200; the required narrative reason for separation was "Misconduct-Pattern of Misconduct." 5. 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. 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 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. 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. ABCMR Record of Proceedings (cont) AR20190004136 8 1