ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  16 November 2020 DOCKET NUMBER:  AR20200009254 


APPLICANT REQUESTS:  An upgrade of his under honorable conditions discharge (general) 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, UnitedStates Code, section 1552(b); however, the ABCMR (Army Board for Correction ofMilitary Records) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states while he was serving in the Army he was given a ride byanother Soldier.  They went to a house in Muldraugh, KY.  He was arrested for beingwith the other Soldier who was doing drugs.  Consequently, the applicant wound up injail in Brandenburg, KY.  He was not doing drugs but he spent 6 months, and wasreleased to the Army.  He was in the control facility and later he was discharged.  Hecertainly did not commit a crime because he was with the wrong person.  Therefore, hewould like an honorable discharge.  His discharge did not merit an under honorableconditions discharge.

3.Review of the applicant’s service records shows:

a.He enlisted in the Regular Army on 31 December 1969, for a period of threeyears.  His military occupational specialty was 94A (Food Service Apprentice (Helper)). 

b.Special Orders Number 74, issued by Headquarters, U. S. Army PersonnelControl Facility, Fort Knox, KY, on 10 August 1971, show he was returned to military control from an absent without leave (AWOL) status, and having been dropped from the rolls of his unit.  He was assigned to the Special Processing Company, U. S. Army Personnel Control Facility, Fort Knox, effective 8 August 1971. 

c.Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent toNormal Date ETS) of his is DA Form 20 (Enlisted Qualification Record) shows the applicant was confined in the hands of civilian authorities from 26 April 1971 to 7 August 1971.  

d.On 17 August 1971, the applicant and another Soldier, were arrested by theMuldraugh Police in Muldraugh, KY for possessing and having in their possession dangerous drugs, namely Marijuana and Pills.  He plead guilty and was sentenced to a $200.00 fine and $32.50 in court costs.  He did not appeal. 

e.On 26 August 1971, the applicant’s commander requested that the applicant bephysically and psychiatrically examined as required by Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) or AR 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) prior to submission of a recommendation that he be administratively separated from the service. 

f.On 26 August 1971, the physician, stated the applicant had received a final typephysical examination and met the physical retention standards prescribed in Chapter 3, AR 40-501 (Standards of Medical Fitness).   

g.On 27 August 1971, the physician, completed the Report of Mental StatusEvaluation, the routine psychiatric portion of the evaluation had been completed in accordance with AR 635-206 or AR 635-212 as applicable, regarding the applicant.  The applicant was mentally responsible, able to distinguish right from wrong and had the mental capacity to understand and participate in board proceedings.  

h.The Report of Psychiatric Evaluation, in the applicant’s case, dated 7 September1971, shows he had been seen by Mental Hygiene Consultation Service (MHCS) upon several different occasions for drug abuse.   

(1)The applicant had enlisted for three years, feeling that if he were to get awayfrom his environment he would be able to control his drug usage, and thereby become a better citizen.  He began drug usage at approximately the age of 11 and he had used a variety of drugs since that time.  There was physical dependence but there was strong evidence of psychological dependence.  He served honorably in the Army for one year.  He had no Article 15’s, Courts Martial, nor previous AWOLs.   

(2)The psychiatrist’s impression was that the applicant was somewhat immatureand inadequate and that he could not develop himself into a satisfactory member of the Army nor perform satisfactorily as a result of his passive-dependent and inadequate personality.  The applicant was apparently no longer motivated to remain in the Army and complete his three-year commitment.   
(3)The impression was that the applicant was not suitable for continuedretention in the Army and accordingly, it was strongly recommended that he be discharged from the service under the provisions of AR 635-212, unsuitability, for drug abuse and that he continue in supportive therapy with MHCS and treatment for his psychological drug dependence pending board action. 

i.On 14 October 1971, the commander’s evaluation of the applicant, shows it wasthe commanders recommendation that the applicant be eliminated from the service due to unfitness for drugs, and be issued an Undesirable Discharge Certificate.  The applicant’s intermediate commander recommended the same on 15 October 1971.  

j.On 20 October 1971, the adjutant general, returned for re-evaluation andcorrective action of elimination from the service.  The action recommended and basis were not consistent with the supporting documentation and records.  He recommended the applicant be considered for elimination for unsuitability.  The applicant’s intermediate commander, returned for reconsideration under the provisions of section 1, paragraph 6a (3), AR 635-212, drug abuse, noting the psychiatric evaluation recommended discharge for unsuitability, this is not considered appropriate in view of the above references.   

k.On 20 October 1971, the applicant’s immediate commander notified him of hisintent to initiate a separation action against him under the provisions of AR 635-212, unfitness for drugs due to drug addiction, habituation, or unauthorized use, sale or possession.  He was advised he had the right to present his case before a board of officers, submit statements in his own behalf, be represented by counsel, and/or to waive rights in writing. He acknowledged receipt on 21 October 1971. 

l.The applicant consulted with legal counsel on 21 October 1971.  He was advisedof the basis for the contemplated separation for unfitness-drugs under the provisions of AR 635-212, its effects, and of the rights available to him.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He also elected not to submit a statement on his own behalf.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if an undesirable discharge under conditions other than honorable was issued to him.   

m.Following this acknowledgement, on 21 October 1971, his immediatecommander initiated separation action against him in accordance with AR 635-212, paragraph 6a(3) with an undesirable discharge, citing his drug addiction, habituation, or the unauthorized use, sale, possession, or transfer of any narcotics, hypnotics, sedatives, depressant, stimulants, hallucinogens, or other known harmful or habit-forming drugs and/or chemicals or the introduction of such drugs and/or chemicals on to any Army installation or other Government property under Army jurisdiction.  It was further recommended that the applicant be issued an Undesirable Discharge Certificate.  His intermediate commander recommended approval of the discharge action. The commander opined that:  

•elimination for unsuitability is not considered appropriate

•the applicant’s performance is characterized by behavior rendering himrepeatedly subject to punitive action

•his behavior is not due to an incapacity to become a satisfactory Soldierwithin the meaning of unsuitability

•there appears to be no grounds for other disposition of the applicant



n.On 11 November 1971, the separation authority approved the applicant'sdischarge under the provisions of AR 635-212 and directed he be issued a General Discharge Certificate. 

o.The applicant was discharged on 19 November 1971.  His DD Form 214 (ArmedForces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 6a (3), AR 635-212 for unfitness-drug abuse, with a characterization of service as under honorable conditions (general).  He was assigned Separation Program Number (SPN) Code 384.  He completed 1 year, 7 months, and 8 days of active service.   

•He was awarded or authorized the National Defense Service Medal

•He lost 104 days from 26 April 1971 to 7 August 1971

•He had excess leave of 8 days from 18-25 August 1971



p.There is no indication he applied to the Army Discharge Review Board for anupgrade of his discharge within that board’s 15-year statute of limitations. 

4.By regulation, (AR 635-212) an individual is subject to separation when it is clearlyestablished that despite attempts to rehabilitate or develop him as a satisfactory Soldierfurther effort is unlikely to succeed.

5.In reaching its determination, the Board should consider the applicant’s petition, hisservice record, and his statement in accordance with the published Department ofDefense guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

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. 

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 

:XX :XXX :XX 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. 

Microsoft Office Signature Line...

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 forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3-year statute of limitations if the Army Board forCorrection of Military Records (ABCMR) determines it would be in the interest of justiceto do so.

2.Army Regulation (AR) 635-212 (Personnel Separations- Discharge Unfitness andUnsuitability) in effect at the time, sets forth basic authority for the separation of enlistedpersonnel.  An individual is subject to separation when it is clearly established that:

a.Despite attempts to rehabilitate or develop him as a satisfactory Soldier furthereffort is unlikely to succeed. 

b.Rehabilitation is impracticable (as in cases of confirmed drug addiction) or he isnot amendable to rehabilitation measures (as indicated by medical and/or personal history record; 

c.An unfitting medical condition (AR 40-501) is not the direct or substantialcontributing cause of his unfitness (para 9b). 

3.Army Regulation 635-5 (Personnel Separations-Separation Documents) (SeparationProgram Number (SPN) is a number used in statistical accounting to represent thespecific authority and reason for separation.  The SPN identifies reasons for and typesof separation from active duty.  The SPN of "384" is the correct code to be assigned toSoldiers separating under chapter 6a (3) of AR 635-212 by reason of unfitness-drugabuse.

4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  BCM/NRs may grant clemency regardless of the type of court-martial.However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which maybe warranted based on equity or relief from injustice.  This guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable relief authority.  In determining whether to grant relief on the basis of equity,injustice, or clemency grounds, BCM/NRs 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 arelevant error or injustice was committed, and uniformity of punishment.  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. 
 
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