ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20190012516 APPLICANT REQUESTS: in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 21 August 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 18 September 1972 * Memorandum from the Office of the Secretary of the Army, dated 25 March 2019, subject: Army Directive 2019-12 (Policy for Voluntary Alcohol-Related Behavioral Healthcare) 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, in effect, he was in the process of receiving a summary court- martial, after receiving four Article 15s for drug possession, refusing a direct order, and being absent from his post. His behavior was due to him being a severe alcoholic. His battles with alcohol were a direct result of exposure to alcohol that was very abundant in the military. When he enlisted, no programs existed to assist military veterans fighting alcoholism. He believes that if a program had existed, he would not have received the discharge he did. Currently, there are programs that allow military personnel to participate in abuse programs and maintain their status. Army Directive 2019-12, based on alcohol related issues, was signed into effect in 2019. Additionally, he has been alcohol free for almost 31 years. 3. In preparation for his induction into the Army of the United States (AUS), the applicant underwent a pre-induction examination on 18 January 1971. During this examination, the physician noted the applicant had been hospitalized for a questionable "drug ingestion" and had failed to provide required documentation. Nevertheless, he was found qualified for induction and was inducted into the AUS on 16 March 1971. 4. The applicant accepted nonjudicial punishment (NJP) on 17 April 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for leaving a weapon unsecured in his wall locker, on or about 16 April 1971, and for absenting himself from his unit on 16 April 1971, from on or about 1100 hours until on or about 1600 hours. 5. The applicant signed a Statement of Orientation on Hazards of Drug Abuse on 23 August 1971. This statement certifies he received an initial orientation on the hazards of drug abuse, to include, that illegal possession and use of drugs are punishable under the UCMJ. 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following occasions: a. On 10 September 1971, for failing to go at the time prescribed to his appointed place of duty, on or about 1230 hours 9 September 1971. b. On 12 October 1971, for wrongfully possessing 20 grams, more or less of marijuana, on or about 24 September 1971. c. On 10 April 1972, for failing to obey a lawful order, on or about 4 April 1972. d. On 2 May 1972, for failing to go at the time prescribed to his appointed place of duty, on or about 1800 hours 1 May 1972. 7. The applicant's commander notified the applicant on 15 May 1972 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness for military service and an established pattern for shirking. 8. The applicant consulted with counsel on 16 May 1972 and acknowledged receipt of the proposed separation notification. He further acknowledged that he: * requested representation by counsel * requested consideration of his case by a board of officers, and a personal appearance before a board * elected not to submit statements in his own behalf * may be deprived of many rights and benefits as a Veteran under both Federal and State law * may encounter substantial prejudice in civilian life if he were issued a general discharge * made these choices freely, without threats or coercion, or without promises of any kind 9. The applicant accepted NJP on 22 May 1972, under the provisions of Article 15 of the UCMJ, for absenting himself from his unit, from on or about 0700 hours, 22 May 1972, until on or about 0700 hours, 23 May 1972. 10. The applicant underwent a mental status evaluation on 26 May 1972, the examining physician noted he had no significant mental illness, was mentally responsible, was able to distinguish right from wrong, was able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. 11. The applicant's immediate commander recommended on 25 May 1972 that the applicant appear before a board of officers to determine if he should be separated from service, under the provisions of Army Regulation 635-212, by reason of unfitness, with a waiver of the rehabilitative transfer requirements. His intermediate commanders also recommended he be separated and receive an Undesirable Discharge Certificate. 12. The applicant was notified on 19 June 1972 to appear before a Board of Officers, within 15 days of his date of notification. 13. A Board of Officers was convened on 4 August 1972. a. The Board found, the applicant, was: * undesirable for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses * undesirable for further retention in the military service because of habitual shirking * his rehabilitation was not deemed possible b. The Board recommended the applicant be discharged from the service because of unfitness with issuance of a DD Form 258A (Undesirable Discharge Certificate). 14. The separation authority directed the applicant's discharge on 21 August 1972, under the provisions of Army Regulation 635-212, by reason of unfitness. The separation authority further directed that the applicant be reduced to the lowest enlisted graded and that he be issued a DD Form 258A (Undesirable Discharge Certificate). 15. The applicant was discharged on 18 September 1972, under the provisions of Army Regulation 635-212. The DD Form 214 he was issued confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 16. The applicant provides Army Directive 2019-12 (Policy for Voluntary Alcohol- Related Behavioral Healthcare). With respect to the applicant's request: a. This policy "establishes policies and procedures for voluntary alcohol related behavioral healthcare, as distinguished from mandatory enrolled substance abuse treatment that requires formal enrollment and mandated treatment." This allows Soldiers who meet specific criteria to receive care without notification to their commanders, as long as the criteria for non-notification are met and maintained throughout voluntary care. b. It further "describes command notification requirements for healthcare providers treating Soldiers who are voluntarily seeking alcohol-related behavioral healthcare." In efforts to "distinguish voluntary behavioral healthcare from mandatory enrolled substance abuse treatment, which will encourage Soldiers to seek help earlier and improve readiness by decreasing unnecessary enrollment and deployment limitations." c. The policy explains in the enclosure paragraph 4d. "Personnel Actions. Soldiers in any type of substance abuse care, whether voluntary or mandatory, are subject to any personnel action their commander deem appropriate, except as noted in paragraph 4c(4)." d. Paragraph 4c(4) states: "Discontinuation of voluntary alcohol-related behavioral healthcare for any reason will not be considered a rehabilitation failure. A history of voluntary alcohol related behavioral healthcare, including discontinuation of this care, cannot be used as a basis for administrative separation." e. This policy does not imply, nor mandate commanders action in personnel actions or administrative separations. It states that commanders will ensure; unit and personnel safety and readiness, and maintain good order and discipline. 17. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. 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 and the Army Directive he provided, his record of service, the signed Statement of Orientation, the frequency and nature of his misconduct, the consideration by a Board of Officers and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct 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 that the character of service the applicant received upon separation was not in error or unjust. 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. 10/22/2020 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. 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 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 4. 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. BCM/NRs 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//