IN THE CASE OF:   BOARD DATE:  5 August 2019 DOCKET NUMBER:  AR20190007440 


APPLICANT REQUESTS:   The applicant request his under honorable conditions discharge (general) be upgraded to honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states in effect, he wants an upgrade so that he can receive benefitsfrom United States Automobile Association (USAA).

3.On 30 April 1980, after a break in service ending in June 1976, the applicant enlistedin the Regular Army for three years at the age of 24 as a Private (E-2).

4.On 3 December 1984, the Alcohol and Drug Abuse Prevention and Control Program(ADAPCP), Clinical Director completed a synopsis on the applicant in response to arequest from the commander.  It states:

a.On 16 January 1984 resulting from a domestic disturbance in which alcohol wasinvolved ending up on the military police blotter report, the applicant was referred to the ADAPCP.  He was enrolled in Track I rehabilitation and participated in twelve hours of awareness education; he satisfactorily completed the program on 16 March 1984.   

b.On 8 November 1984, he was enrolled for a second time for a positive urinalysis;he was positive for hashish.  On 19 November 1984 it was revealed the applicant was extremely depressed and wasn’t interested in any type of rehabilitation.  He had no motivation to change and was declared a rehabilitative failure on 21 November 1984 deemed in the best interest of the Army not to be retained.  The applicant was able to still receive Track II, individual counseling services until he left the unit. 

c.The information was disclosed to the commander from records from whoseconfidentiality is protected by Federal Law.  Federal regulations (42 CFR part 2) prohibit the commander from making any disclosure of it without written consent of the person to who it pertained, or as otherwise permitted by such regulations.  A general authorization for the release of medical or other information was not sufficient for the purpose. 

5.On 10 December 1984, the applicant received non judicial punishment (NJP) forwrongfully use of marijuana which was identified in a positive urinalysis conducted on 4October 1984.

6.On 14 December 1984, he underwent a medical examination and was foundqualified for administrative separation.

7.A Bar to Enlistment/Reenlistment Certificate dated 19 December 1984, shows hiscommander initiated a bar to reenlistment.  The applicant acknowledged the bar andelected not to submit a statement on his behalf.  The command recommended he bebarred from reenlistment for unsatisfactory conduct, for specifically:

.Receiving NJP for wrongful use of marijuana

.Synopsis of ADACP rehabilitative activities rendering him a rehabilitative failure

.Not possessing the initiative or attitude desirous of a Soldier in the military

.A weakness in the area of trainability



8.On 24 December 1984, the appropriate authority approved the Bar to Reenlistmentand instructed the correspondence would be placed permanently in his personnelrecords; the remark, “Not recommended for further service”, will be entered on hisqualification record; the bar would be reviewed by the unit commander and would beconsidered for removal if the applicant had proven himself worthy of retention.

9.On 7 January 1985, the commander wrote as statement about his consultation withthe rehabilitation team of ADAPCP.  He determined that further rehabilitation effortswere not practical in the applicant’s case.  The applicant was then declared arehabilitative failure.

a.The commander formerly counseled him about his eligibility for the Good ConductMedal (GCMDL).  The commander notified him that he would intend to recommend that he be disqualified for eligibility to receive the GCMDL due to lack of trainability and being declared a rehabilitative failure after being enrolled in the ADACP program from two separate incidents.  The applicant read and understood the unfavorable information presented and elected not to make a statement. 
b.He was then notified by his commander that he was initiating action to separatehim under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations) chapter 9, ADAPCP rehabilitation failure.  The applicant 
acknowledged being notified for the contemplated separation action against him; he was made aware of his available rights and consulted with legal counsel.   

10.On 8 January 1985, the applicant’s commander recommended he be dischargedunder the provisions of AR 635-200, Chapter 9 for ADAPCP rehabilitation failure; hewas enrolled in ADAPCP for a domestic disturbance in which alcohol was involved;enrolled a second time for a positive urinalysis for hashish; he was extremely depressedand wasn’t interested in any type of rehabilitation; no motivation to change.  Potential tobe successfully rehabilitated was determined to be extremely poor.

11.On 10 June 1985, the appropriate approval authority approved the recommendationfor discharge of the applicant and directed he be issued a general discharge certificatewith the appropriate code for alcohol abuse; he would not be transferred to theindividual ready reserve (IRR).

12.On 24 January 1985, the applicant was discharged accordingly; he completed 4years, 8 months, and 25 days of net active service.  His DD Form 214 shows in theremarks section a DD Form 215 will be issued to provide missing information however,his record is void of a DD Form 215.

13.A review of the available record shows graduated high school; was on active dutyfrom September 1973 to June 1976; he attended Central Texas College; his militaryoccupational skill (MOS) was 52D (Power Generator Equipment Repairer); hisassignments were in Hawaii, Fort Hood, and his last assignment was Germany; he wasawarded the GCMDL (2nd Award).  The highest rank he held was Sergeant (SGT).

14.The applicant requests an upgrade so that he may receive benefits.  The ABCMR isnot authorized to grant requests for upgrade of discharges solely for the purpose ofmaking the applicant eligible for veterans' benefits; however, in reaching itsdetermination, the Board can consider the applicant's petition, his service record, andhis statements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records and whether to apply clemency.  The Board considered theapplicant’s statement, his record of service to include a previous period of service, thefrequency and nature of his misconduct, his ADAPCP enrollment, the reason for hisseparation and whether to apply clemency.  The Board found no evidence of in-servicemitigation for his misconduct and the applicant provided no evidence of post-serviceachievements or letters of reference in support of a clemency determination.  Basedupon a preponderance of evidence, the Board determined that the character of servicethe applicant received upon separation was not in error or unjust.




2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.

BOARD VOTE:

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XXX 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. 




X


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 militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.Army Regulation 635-200, prescribed policies and procedures for administrativeseparations of enlisted personnel.  It stated:

a.Chapter 9 contains the authority and outlines the procedures for dischargingindividuals because of alcohol or other drug abuse.  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 if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  At the time of the applicant's separation, an honorable or general discharge was authorized. 

b.An honorable discharge is a separation with honor.  Issuance of an honorabledischarge is conditioned upon proper military behavior and proficient performance of duty during the current enlistment.  Where there are infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15, UCMJ.  It is the pattern of misconduct and not the isolated instance which should be considered. 

c.A general discharge is a separation from the Army under honorableconditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

3.Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel isthe prerogative of the Secretary of the Army and will be effected only by hisauthority.  Except as delegated by these regulations or by special Department of theArmy directives, the discharge or release of any enlisted member of the Army for theconvenience of the Government will be at the Secretary’s discretion and with the type ofdischarge as determined by him.  Such authority may be given either in an individualcase or by an order applicable to all cases specified in such orders.

4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/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 on the basis of 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.