ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190006786 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20060015641 on 31 May 2007. Specifically, he requests correction of his previously-amended DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a different narrative reason for separation. 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), dated 2 May 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous considerations of the applicant's case by the ABCMR in Docket Number AR20060015641 on 31 May 2007. 2. The applicant submitted a new argument with this application that was not considered by the Board during its initial consideration. This new argument warrants consideration at this time. 3. The applicant states he was not given any counseling or rehabilitation from the unit to which he was attached, in accordance with the provisions set forth in Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13. 4. The applicant enlisted in the Regular Army on 29 December 1972. He completed training as an armor crewman. 5. The applicant's commander formally recommended the applicant for discharge on 10 September 1973, under the provisions of Army Regulation 635-200, paragraph 13-5a, by reason of unfitness. His commander cited his drug addiction and unauthorized use or possession of marijuana as the basis for his recommendation. The commander stated: a. The applicant made no effort whatsoever to avail himself of the facilities provided by the U.S. Army to cure his drug problem. It was apparent at that point he had no desire to overcome his problem, nor to improve his conduct and performance while a Soldier in the U.S. Army. The applicant was continuously using drugs and it affected his ability to do his job in the U.S. Army. b. He showed no inclination to change his course of conduct or to improve his conduct in any way. It appeared at that point his usefulness to the Army was diminishing and would become nil. He should be discharged immediately. c. It was noted in the recommendation for discharge that the applicant had twice accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice; those documents are not available for review. 6. The applicant was notified on 11 September 1973 that he was being recommended for discharge under the provisions of Army Regulation 635-200, paragraph 13-5a, for unfitness. He acknowledged receipt of the notification. He consulted with counsel on 19 September 1973. He waived his rights contingent upon receiving a general discharge and he made an election not to submit a statement in his own behalf. 7. The separation authority approved the recommendation for discharge on 4 October 1973 and directed the issuance of a DD Form 257A (General Discharge Certificate). 8. The applicant was discharged on 22 October 1973, under the provisions of Army Regulation 635-200, Chapter 13, for unfitness. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms his separation program number was "384" (drug abuse), his service was characterized as under honorable conditions (general), and he was issued a General Discharge Certificate. 9. The applicant's general discharge was subsequently upgraded to an honorable discharge as a result of The Order of the U.S. District Court for the District of Columbia in Giles v. Secretary of the Army (Civil Action 77-9404). He was issued a new DD Form 214 showing his character of service as honorable. However, his narrative reason for separation (unfitness) and separation code "384" remained unchanged. 10. The ABCMR denied the applicant's request for a change of his narrative reason for separation on 31 May 2007. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and 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 determined the reason for the applicant's 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20060015641, dated 31 May 2007. 8/21/2020 X CHAIRPERSON 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. Army Regulation 635-5-1 (Separation Program Designator Codes), in effect at the time, provided that the separation program number "383" (Unfitness, Drug Abuse) was the proper separation program number for Soldiers being separated under the provisions of Army Regulation 635-200, paragraph 13-5a(3). 2. Army Regulation 635-200, sets forth the requirements and procedures for the administrative discharge of enlisted personnel. Paragraph 13-5a(3) of this regulation, in effect at the time, provides for separation due to unfitness for drug abuse, or unauthorized use, sales, possession, or transfer of any controlled substance, or introduction of such controlled substance onto any Army installation or other Government property under Army jurisdiction. The regulation requires that separation action will be taken when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unfitness under this regulation was characterized as under honorable conditions. 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.