IN THE CASE OF:  

		BOARD DATE:  21 April 2020

		DOCKET NUMBER:  AR20190014964


APPLICANT REQUESTS:  an upgrade of his character of service from under honorable 
conditions (general) to honorable.

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 8 October 2019,

FACTS:

1.  The applicant did not file within the three-year period provided in Title 10, United 
States Code, section 1552(b); however, the 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 was young and immature but he did not use 
drugs.  However, he participated in a Drug Rehabilitation program before being 
discharged.  It is unfair that he cannot receive his Department of Veterans Affairs (VA) 
benefits.

3.  The applicant enlisted in the Regular Army on 5 July 1978, he was 18 years of age.  
The highest grade he held was specialist four (SP4/E-4).

4.  He accepted non-judicial punishment under the provisions of Article 15 of the 
Uniform Code of Military Justice (UCMJ), for the following offenses:

*	failing to go to his appointed place of duty on 12 February 1981 at Fort Jackson, 
South Carolina
*	assaulting a female, by twisting her arm behind her back, kicking her on her 
upper thigh, and striking her three times about the face with a closed fist on or 
about 22 December 1981 to 23 December 1981, at Patrick Henry Village, 
Germany
	
5.  His record contains a memorandum from the Clinical Director, Community 
Counseling Center, Heidelberg, Germany.  This official provided a synopsis of the 
applicant's Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) 
rehabilitation activities, which show:

*	the applicant was enrolled in the ADAPCP on 5 January 1983 as the result of a 
positive urinalysis
*	he participated in eight, Track II rehabilitation sessions
*	his participation was found to be unsatisfactory as the applicant consistently 
denied having a substance abuse problem and the need to be in the program
*	his potential for successful rehabilitation was poor

6.  The applicant's immediate commander notified the applicant on 22 June 1983 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 drug and alcohol abuse.  His commander cited an alcohol related incident on 
30 December 1982, a positive urinalysis on 30 November 1982, and another positive 
urinalysis on 31 March 1983.

7.  The applicant consulted with counsel on 23 June 1983 and was advised of the basis 
for the contemplated action to separate him and of the rights available to him.  He 
acknowledged his understanding and elected not to submit a statement in his own 
behalf.  He also acknowledged that he may encounter substantial prejudice in civilian 
life if he received an under honorable conditions (general) discharge.

8.  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 5 July 1983 and 
directed the issuance of a General Discharge Certificate.

9.  The applicant was discharged on 26 August 1983.  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).

10.  The Board should consider the applicant's statement and his overall record in 
accordance with the published equity, injustice, or clemency determination guidance.





BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted.  The Board carefully considered the applicants 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, the reason for his 
separation and whether to apply clemency.  The Board found insufficient evidence of in-
service mitigating factors for the misconduct and the applicant provided no evidence of 
post-service achievements or letters of support to weigh 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.

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, United States Code, section 1552(b), provides that applications for 
correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the 
basic authority for the separation of enlisted personnel, and provided the following 
guidance:  

	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.

	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)	 AR20190014964


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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