IN THE CASE OF: BOARD DATE: 20 February 2020 DOCKET NUMBER: AR20190014188 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 30 July 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, in effect, that he would like his discharge upgraded due to the fact that he became addicted to drugs while in on active duty in Germany. He feels the Army did nothing to help him with his addiction, which could have saved his military career. He knows that substance abuse is deemed as a mental health disorder, which he was not treated for. He would like his under honorable conditions (general) discharge upgraded to an honorable discharge. 3. The applicant enlisted in the Regular Army on 10 January 1984. 4. The applicant accepted non-judicial punishment on 17 September 1985, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the indicated offenses: * for wrongfully using some amount of hashish or a derivative thereof, a schedule 1 controlled substance, on or about 21 June 1985 * for wrongfully using some amount of cocaine or a derivative thereof, a schedule 1 controlled substance, on or about 21 June 1985 * for wrongfully importing some amount of hashish from the United States of America into customs territory of the Federal Republic of Germany, on or about 11 July 1985 5. The applicant was first enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 17 October 1985, after he was found to be in possession of cannabis products and cocaine. He was placed in Track II counseling program. He subsequently had one positive urinalysis for cannabis and three negative urinalysis. The applicant demonstrated an attitude of non-cooperation in abstinence from illegal drugs. 6. The applicant was formally counseled on 2 May 1986, for testing positive for Tertrahydrocannabinol (THC) during a unit urinalysis on 27 March 1986, in violation of the Track II ADAPCP requirements. He was counseled on 8 May 1986, for his two time drug usage and his commander's intent to process him for elimination. 7. In a memorandum dated 29 May 1986, and following consultation with ADAPCP staff, the Community Counseling Center Clinical Director determined the applicant was a rehabilitation failure. 8. The applicant's immediate commander notified the applicant on 10 June 1986 that he was being recommended for separation from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9, based on his rehabilitative failure in the ADAPCP. 9. The applicant consulted with counsel on 10 June 1986 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He further acknowledged his understanding and elected not to submit a statement in his own behalf. 10. The applicant's immediate commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 9. The separation authority approved the recommended discharge on 8 August 1986 and directed the issuance of a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 5 September 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 9, by reason of drug abuse rehabilitation failure. His service was characterized as under honorable conditions (general). 12. The Board should consider the applicant's overall record 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 regulatory requirements. The Board noted the facts presented above. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge with characterization of under honorable conditions (general). 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 635-200 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the 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. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or under honorable conditions unless the Soldier is in entry-level status. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014188 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014188 5 ABCMR Record of Proceedings (cont) AR20190014188 4