IN THE CASE OF: BOARD DATE: 13 September 2022 DOCKET NUMBER: AR20220001930 APPLICANT REQUESTS: Reconsideration of the previous request to have his under honorable conditions (general) discharge upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100026815 on 24 May 2011. The Board denied the applicant's request because the evidence presented did not demonstrate the existence of a probable error or injustice. 2. The applicant states he was instructed when he was discharged that after six months his discharge would be upgraded to an honorable. A year after his discharge the U.S. Army notified him that the testing equipment was in error and that he could come back as the same rank and receive back pay. He would rather have an honorable discharge. 3. The applicant enlisted in the Regular Army on 8 September 1981 for a 3-year service obligation. Upon completion of training, he was awarded military occupational specialty 92B (Medical Lab Specialist). The highest grade he attained was private first class/E-3. 4. The applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 28 June 1983 following a biochemical referral for marijuana abuse. 5. A DA Form 3975 (Military Police Report) dated 3 October 1983, shows the applicant and a fellow Soldier were apprehended by military police on 12 September 1983. A search was conducted, and the applicant was in possession of rolling papers. The other Soldier was in possession of a smoking device and a manila envelope containing greenish-brown substance, suspected to be marijuana. a. The manila envelope and the smoking device were tested utilizing the Becton- Dickinson Test Kit “E” and were found to be positive for Tetrahydrocannabinol (THC), the active ingredient in marijuana. b. By sworn statement, dated 12 September 1983, he admits to the smoking device belonging to him and to smoking marijuana while in the military. c. He was changed to Track II of the ADAPCP on 19 September 1983 due to evidence of continued abuse. 6. By memorandum, dated 4 October 1983, the ADAPCP Officer stated that since enrollment the applicant had two incidences of marijuana use and one that involved marijuana possession. The officer further stated, he saw himself as a victim and refused to take responsibility for his behavior. 7. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 21 October 1983, for wrongfully possessing and using some amount of marijuana, on or about 12 September 1983. 8. On 27 October 1983, the applicant's immediate commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9, for alcohol or drug abuse rehabilitation failure. His commander noted, the recommendation was made after consultation the ADAPCP rehabilitative team. 9. The applicant consulted with counsel on the same date and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He further acknowledged his understanding and elected to submit a statement in his own behalf, wherein he stated, in effect: a. He should be retained in the Army. He wanted to serve his time to payback the schooling the Army furnished him. He was hoping to make a career out of the military and ultimately complete a mortuary science degree and eventually become an officer in the Army. He had been a hard worker at his job completing over three-fourths of all autopsies performed in the last 18 months. b. He was the only junior enlisted service member who had been trained in histopathology. This opportunity was given to him by the histopathology personnel in the lab section. He was one of the best phlebotomists in the laboratory, as evident by the many requests he received to draw blood due to his professionalism. He knew that what he did was wrong according to military standards and regulations. He has made every effort to overcome this problem. He needed to learn how to cope with reality, without a crutch. He felt that he had been punished enough and wanted another chance to prove himself. 10. On 16 January 1984, the applicant's commander formally recommended the applicant's separation under the provisions of Army Regulation 635-200, Chapter 9. On 18 January 1984, the separation authority approved the recommendation and directed the issuance of a DD Form 257A (General Discharge Certificate). 11. Accordingly, the applicant was discharged on 25 January 1984. 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. The service of Soldiers discharged under this chapter will be characterized as honorable or under honorable conditions unless the Soldier was in an entry-level status. 13. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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 a relevant error or injustice was committed, and uniformity of punishment. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to alcohol or drug abuse rehabilitation failure. His commander noted, the recommendation was made after consultation the ADAPCP rehabilitative team. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: 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 to amend the decision of the ABCMR set forth in Docket Number AR20100026815 on 24 May 20111. 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. Chapter 9 contained the authority and outlined the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who had been referred to the ADAPCP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there was a lack of potential for continued Army service and rehabilitation efforts were no longer practical. Nothing in this chapter prevented separation of a Soldier who had been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings was required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter would be characterized as honorable or under honorable conditions, unless the Soldier was in an entry-level status. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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) AR20220001930 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1