IN THE CASE OF: BOARD DATE: 1 December 2022 DOCKET NUMBER: AR20220006327 APPLICANT REQUESTS: * an upgrade of his characterization of service from under honorable conditions (general) to honorable * a 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), 28 February 2022 * Certificate of Military Service, 27 April 2017 * Letter from National Personnel Records Center, 27 Apr 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 11January 1990 * DD Form 4 (Enlistment/Reenlistment Document), 6 January 1987 * DA Form 2-1 (Personal Qualification Record), 9 February 1989 * DA Form 4856 (General Counseling Form), 19 August 1989 * DA Form 4856, 30 August 1989 * DA Form 4856, 31 August 1989 * DA Form 4856, 4 September 1989 * DA Form 4856, 11 October 1989 * DA Form 4856, 18 October 1989 * DA Form 4856 , 1 November 1989 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, he was supposed to be transported by ambulance to a hospital on Fort Hood after he was in a car accident but was instead picked up by a Private in his company and was taken back to his barracks where he could not feed, walk, or care for himself. It was not until the next day that his lieutenant took him back to the hospital, wherein he was sent back to the barracks again. He states that his lieutenant spoke with a warrant officer at the hospital, and it was later identified that there was miscommunication, and he should have been admitted to the hospital after the car accident and not sent back to his barracks. The applicant claims that while in his hospital room, he was approached by the General Liaison officer regarding threats by his grandmother to take legal action against the Army. He states that the General Officer agreed he would be discharged from service under "honorable" conditions after he was released from the hospital and recovered from his injuries. 3. The applicant enlisted in the regular Army on 6 January 1987. 4. The applicant received company grade NJP on 15 August 1989 for drunk and disorderly conduct, on or about 11 August 1989. His punishment consisted of reduction to private first class (PFC)/E-3, forfeiture of $200.00 pay, and 14 days of restriction and extra duty. The reduction and forfeiture were suspended unless vacated before 30 December 1989. 5. The applicant's noncommissioned officer leadership rendered performance counseling on seven separate occasions between 19 August 1989 and 1 November 1989 for the following: * drinking problems * misconduct and alcohol related incidents * revocation of pass privileges * arrest due to public intoxication 6. On 15 November 1989, in consultation with the Alcohol and Drug Abuse Prevention and Control (ADAPCP) staff, the applicant's commander declared him a rehabilitation failure in the Fort Hood Alcohol and Drug program and directed the applicant to be processed for separation from service. 7. The applicant received field grade NJP on 20 November 1989 for, after being restricted to the limits of Fort Hood, breaking said restriction, on or about 12 November 1989. His punishment consisted of reduction to the rank/grade of Private (PVT)/E-1, forfeiture of $349.00 per month for two months, 45 days extra duty, and 45 days restriction. 8. The applicant underwent a medical examination on 30 November 1989 for the purpose of separation. The doctor noted swelling in the applicant's left knee but cleared him for administrative separation. 9. The applicant underwent a mental status evaluation on 14 December 1989. The doctor did note any mental issues and cleared him for administrative separation. 10. On 28 December 1989, the applicant’s immediate commander notified him he was recommending him for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations, Enlisted Personnel), chapter 9, for alcohol rehabilitation failure, and he be given a (General) discharge. The applicant's commander informed him he had the right to consult with counsel, to submit statements on his own behalf, to obtain copies of all documents pertaining to the separation process, and to waive his rights in writing. The applicant acknowledged the notification of separation on 28 December 1989. 11. The applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, chapter 9, on 28 December 1989. The commander's reasons for the recommended action: the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program on 11 September 1989 for alcohol abuse. The applicant was deemed a rehabilitative failure for alcohol abuse on 15 November 1989. He noted the seriousness of the circumstances is such that the applicant's retention would have an adverse impact on the discipline, good order, and moral if he were to remain in the unit. 12. The applicant's commander submitted a formal recommendation for discharge under the provisions of AR 635-200, chapter 9, on 29 December 1989. He noted that the applicant be furnished a general discharge. 13. On 29 December 1989 the separation authority approved the recommended discharge, under the provisions of AR 635-200, chapter 9, paragraph 13-2, and directed the applicant be issued a general discharge and be transferred to the Inactive Ready Reserve (IRR). 14. The applicant was discharged on 11 January 1990. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 9, for alcohol abuse - rehabilitation failure, in the rank/grade of PVT/E-1, and his service was characterized as under honorable conditions (general). He completed 3 years and 6 days of active service with continuous honorable active service from 6 January 1987 to 14 June 1989. Additionally, his DD Form 214 shows he received the Army Achievement Medal. 15. There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 16. Discharges under the provisions of AR 635-200, chapter 9, provides the authority and outlines the procedures for discharging soldiers for alcohol or other drug abuse rehabilitation failure. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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 and 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 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, U.S. 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 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, provides the authority and outlines the procedures for discharging soldiers for alcohol or other drug abuse rehabilitation failure. Paragraph 9-2 states, a soldier who is enrolled in 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 in the following circumstances: (1) There is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. (2) Long-term rehabilitation is necessary, and the soldier is transferred to a civilian medical facility for rehabilitation. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) 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 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 may be warranted based on equity or relief from injustice. 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, 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. 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. 4. Army Regulation 15-185, paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006327 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1