IN THE CASE OF: BOARD DATE: 15 February 2023 DOCKET NUMBER: AR20220005956 APPLICANT REQUESTS: reconsideration of his prior request for an upgrade of his under honorable conditions (general) discharge. Further, he requests personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement * DD From 214 (Certificate of Release or Discharge from Active Duty), for the period ending 1 August 1985 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120015378 on 14 March 2013. 2. As a new argument, the applicant states he asked for a transfer out of his unit, in June of 1985. His DD Form 214 says alcohol abuse rehabilitation failure. In early 1985, he was arrested for driving while intoxicated (DWI). He went to Alcoholics Anonymous meetings and did not drink. In late July or early August, he was pulled out of formation and signed papers because he thought his transfer was going through. A sergeant asked him, why he was getting out of the military, he was in shock. He went to a Judge Advocate General officer and was told there was nothing he could do. He had no knowledge he was being discharged and had no defense. 3. The applicant enlisted in the Regular Army on 8 September 1983 for 3 years. Upon completion of training, he was awarded military occupational skill 13E (Cannon Fire Direction Specialist). 4. On 5 July 1984, the applicant was arrested by an officer of the Anchorage Police Department for DWI, resisting arrest, providing false information, driving with an open [alcohol] container in his vehicle, and operating a vehicle without a valid operator's license. He was remanded to the custody of the military police. 5. On 9 July 1984, the applicant was command referred to the Fort Richardson, Alaska Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for rehabilitation. 6. On 24 September 1984, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, on or about 28 August 1984. His punishment included 14 days extra duty and 14 days restriction. 7. On 11 June 1985, the applicant accepted NJP under Article 15 of the UCMJ, for committing assault upon another Soldier, thereby intentionally inflicting grievous bodily harm, on or about 5 June 1985; and wrongfully using provoking words (racial) towards another Soldier, on or about 5 June 1985. His punishment included reduction to the grade of E-2, forfeiture of $286 pay for one month, 14 days extra duty, and 14 days restriction. 8. By memorandum, from the Acting Clinical Director, Fort Richardson, Alaska Community Counseling Center, the applicant's commander was notified that the applicant had: * attended education classes on 31 July, 1 August, and 6 September 1984 * attended and participated in group therapy on 1, 2, and 3 August 1984 * attended numerous individual counseling sessions between 13 July and 22 April 1985 * been deemed "program completed" at the request of his chain of command as a program failure for being drunk, fighting in the barracks, and not complying with his treatment plan * a poor prognosis for continued efficiency in military service 9. The applicant's immediate commander notified him on 16 July 1985 that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 9, citing his failure in the alcohol rehabilitation program and his expressed desire to continue to abuse alcohol; declaring him a program failure. 10. Subsequently, the applicant consulted with counsel 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 not to submit a statement in his own behalf. 11. The applicant's commander formally recommended his separation from service on 23 July 1985, under the provisions of Army Regulation 635-200, Chapter 9, for alcohol abuse. 12. Subsequently, the separation authority approved the recommended discharge and directed that the applicant be furnished an Under Honorable Conditions (general) Discharge Certificate. 13. The applicant was discharged on 1 August 1985. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 9, for alcohol abuse – rehabilitation failure. His service was characterized as under honorable conditions (general). He completed 1 year, 10 months, and 24 days of net active service this period. 14. The applicant petitioned the ABCMR on 6 August 2012, for consideration of his request to have his under honorable conditions (general) discharge upgraded. The Board voted to deny relief and determined the overall merits of the case were insufficient as a basis for correction of the records. 15. 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: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, 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. The Board found the applicant’s record exhibits numerous instances of misconduct during his 1 year, 10 months, and 24 days of net active service this period. 2. The Board determined the applicant was discharged for alcohol abuse – rehabilitation failure and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 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 and a reversal on the previous board determinations is not warranted. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 to amend the decision of the ABCMR set forth in Docket Number AR20120015378 on 14 March 2013. 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. 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. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service BCM/NRs on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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) AR20220005956 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1