ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20190011047 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge 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, United States 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 he erred in his decisions as a young man. He wishes he would have stayed in the Army. 3. The applicant was born on 21 June 1952. He enlisted in the Regular Army on 8 April 1970. He arrived in Vietnam on 24 January 1971. 4. The applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 17 November 1971 for misbehaving while acting as a sentinel (found asleep at his guard post). 5. The applicant's record shows he was counseled on various occasions for drug abuse, military bearing, and general disregard for orders and regulations. 6. On 18 December 1971, the applicant's commander requested his transfer to the Army Drug Abuse Holding Center. The commander stated the following: "[The applicant] voluntarily entered the [Drug] Exemption Program in the summer of 1971. On 16 October 1971 [the applicant] participated in a urinalysis test, confirmed positive for opiates, and admitted to the Drug Treatment Center on 22 October 1971. On 4 December 1971 [the applicant] failed a unit urinalysis." 7. On 20 December 1971, the applicant's commander recommended his separation from the service under the provisions of Army Regulation (AR) 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness, with a general discharge. The commander stated the following: "It is recommended that [the applicant] be eliminated from the service under the provisions of AR 635-212 for unfitness with a general discharge. Discharge is recommended because of [the applicant's] continued drug habit. He was granted exemption under the Drug Exemption Program in the early summer of 1971. A drug urinalysis test conducted on 16 October 1971 revealed he had a positive reading on 4 December 1971. His continued drug abuse has rendered him negligible value to the United States Army." 8. On 12 January 1972, the applicant was informed by his commander that he was recommending his separation from the Army under the provisions of AR 635-212, for unfitness, with a general discharge. The commander stated the reason for his recommendation was that the applicant had been identified as a drug abuser. 9. On 12 January 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, his right to present his case before a board of officers, to submit a statement in his own behalf, and to be represented by counsel. He elected to waive his rights. He also indicated he understood he might expect to encounter substantial prejudice in civilian life by reason of a general discharge under honorable conditions. He also acknowledged that he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life as a result of an undesirable discharge under conditions other than honorable. 10. On 16 January 1972, the separation authority approved the applicant's discharge under the provisions of AR 635-212 and directed the issuance of a General Discharge Certificate. On 27 January 1972, he was discharged accordingly. 11. A Disposition Form, dated, 27 January 1972, shows the applicant was in a patient status from 24 December 1971 to 22 January 1972 while undergoing the U.S. Army Drug Identification and Treatment Program. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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 and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, that his general under honorable conditions discharge was fair and equitable, and there was no basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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. AR 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. The regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190011047 4 1