BOARD DATE: 6 March 2020 DOCKET NUMBER: AR20190013667 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. 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 22 August 2019 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 22 August 2019 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 that at the time of his discharge, he was told he would receive all of his benefits. He was accepted to Ohio University but was denied his educational benefits. He is currently incarcerated in a Federal prison but he's trying to take steps to better himself and provide for his wife and seven children. 3. The applicant enlisted in the Regular Army on 23 February 1989. 4. The applicant was cited by civilian authorities for speeding and driving under the influence (DUI) on 25 April 1992. 5. The applicant received a Memorandum of Reprimand on 25 May 1992, for the civilian offense and for driving on post with a blood alcohol level of 0.08 in violation of State and Federal law. 6. The applicant was directed to participate in the Army Drug and Alcohol Prevention and Control Program (ADAPCP) on 25 May 1992. 7. An ADAPCP rehabilitation team agreement notes the applicant agreed to the terms for rehabilitation on 8 June 1992. 8. A bar to reenlistment was initiated on 12 June 1992. The DA Form 4126-R (Bar to Reenlistment Certificate) indicates the applicant had received nonjudicial punishment (NJP) on 14 May 1992, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for drunken and reckless driving. 9. A Memorandum of Reprimand, dated 16 June 1992, notes the applicant was a two time DUI offender and that DUIs were serious offences and repeat offenders should not be allowed the potential for future reentry into the service. 10. The ADAPCP clinical director notified the applicant's command on 30 June 1992 that the applicant had missed a counseling session; therefore, the applicant would be released from the program by reason of rehabilitative failure. 11. The applicant was afforded a mental status evaluation on 8 July 1992, which psychiatrically cleared him for any administrative actions deemed necessary. 12. The applicant's unit commander notified the applicant on 21 July 1992 that he was initiating actions to separate the applicant from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9, by reason of the applicant's alcohol rehabilitation failure. 13. The applicant acknowledged the notification and waived his right to consult with legal counsel on 21 July 1992. a. He acknowledged he had been advised of the basis for the contemplated separation action, the possible effects of a discharge under conditions other than honorable, and the procedures and rights that were available to him. b. He further acknowledged he understood that if the discharged request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf but declined to make a statement. 14. The ADAPCP clinical director formally notified the applicant's command on 22 July 1992 that the applicant had not made satisfactory progress in the program and that he should be discharged for failure to comply with rehabilitation efforts. 15. The applicant's unit commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 9. The separation authority approved the applicant's discharge on 24 July 1992, under the provisions of Army Regulation 635-200, Chapter 9, and directed that the applicant's character of service be under honorable conditions. 16. The applicant was discharged on 17 August 1992. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 9, as an alcohol rehabilitation failure, and his service characterization was under honorable conditions (general). His DD Form 214 further shows: * he was discharged in the rank/grade of private first class/E-3 * he had 3 years, 5 months, and 25 days of active duty service with no lost time * he was awarded an Army Achievement Medal and the Army Good Conduct Medal 17. The reasons for the applicant's incarceration and denial of educational benefits are not of record. It should be noted that even with an honorable discharge, the applicant would not be eligible for benefits since under VA regulations, he had only 10 years after his date of discharge to utilize the benefits. 18. The Board may consider the applicant's petition, his service record, and his 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 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 enrollment in ADAPCP and disenrollment, 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. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 9 sets forth the basic authority for the separation of enlisted personnel 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. The service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013667 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013667 6 ABCMR Record of Proceedings (cont) AR20190013667 4