IN THE CASE OF: BOARD DATE: 7 February 2023 DOCKET NUMBER: AR20220007632 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Certificate of Achievements and Training (three) * Letter of Appreciation * DD Form 214 (Certificate of Release or Discharge from Active Service) 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 he enlisted in the Army with the expectation to serve his country. He completed basic and advanced individual training. When they graduated, they were given the afternoon off, many Soldiers began drinking and got drunk. He did not understand the behavior in contrast to the structure from training. When his unit arrived in Germany, another Soldier took the new Soldiers into town to show them how to use the train and told them all about German beer. The vending machines in the barracks contained beer and Soldiers would bring beer in their rooms. He admits to drinking to excess a few times. His performance record shows he was an outstanding performer in his battalion. He was given an anti-alcohol medication for a few months then was discharged for rehabilitation failure. He was threatened with a court-martial. 3. The applicant enlisted in the Regular Army on 23 February 1982, for a 3-year term of service. He was awarded military occupational specialty 12C (Bridge Crewman). He arrived in Germany on or about 24 June 1982 4. On 22 July 1982, the applicant was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for further alcohol abuse counseling and education due to numerous alcohol related incidents in which he failed to attend morning formations due to intoxication. His records are void of documents to show what incident took place for the applicant to be command referred to the ADAPCP program. 5. A ADAPCP Client Progress Report (CPR) on 22 October 1982 for the Track II program, shows the applicant's counselor noted that he was progressing, and his commander s appraisal of progress was noted as satisfactory. 6. On 27 September 1982, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty, on or about 2 September 1982 and 1 September 1982. 7. An ADAPCP CPR dated 22 January 1983 for the Track II program, shows the applicant's counselor noted that he was not progressing in the program. His commander s appraisal of progress was still noted as satisfactory. 8. By memorandum, dated 15 March 1983, the applicant was determined to be a rehabilitation failure. The ADAPCP, Clinical Director, stated the applicant was enrolled in the program on 22 July 1982. A rehabilitation team meeting was held on 22 December 1982 to discuss the applicant s new goals. The applicant agreed to total abstinence, attendance at alcohol anonymous, and improved work performance. He participated in 16 sessions of group counseling out of the 27 scheduled sessions. Additionally: a. On 12 March 1983 the applicant was involved in an alcohol related incident that resulted in severe personal injury and subsequent hospitalization. He also had several recorded incidents of failure to repair due to excessive alcohol consumption and one absence without leave (AWOL) was also recorded [void from his record]. b. His attitude while in rehabilitation was marginal most of the time. It was determined that his potential for successful rehabilitation was poor. 9. On 24 March 1983, the applicant's immediate commander notified the applicant on 24 March 1983 that he was being recommended for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), Chapter 9, for continuing alcohol abuse. His commander noted the following reasons: * on 5 August 1982, received company level extra training for failure to attend unit formations due to intoxication * on 27 September 1982, received Article 15 for failure to attend two morning formations due to intoxication * on 26 January 1983, received Article 15 for AWOL * on 12 March 1983, admitted to Hospital for injuries sustained when he was beat up outside a local gasthaus (blood alcohol level registered 3.58) 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 24 March 1983, under the provisions of AR 635-200, Chapter 9, for ADAPCP rehabilitation failure. 12. The separation authority approved the recommended discharge on 31 March 1983 and directed that the applicant be issued a general discharge. 14. The applicant was discharged on 3 May 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of AR 635-200, Chapter 9, for alcohol abuse rehabilitation failure, Separation Code JKL, Reentry Code 3). His service was characterized as under honorable conditions. He completed 1year, 2 months, and 11 days of net active service this period. 15. The applicant provides two in service certificates of achievements, a certificate of training, and a letter of appreciation dated between 6 August 1982 and 3 March 1983. 16. 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: 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 under the provisions of AR 635-200, Chapter 9, for alcohol abuse rehabilitation failure, Separation Code JKL, Reentry Code 3. His service was characterized as under honorable conditions. He completed 1 year, 2 months, and 11 days of active service. 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 ME: GT: SM: 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 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) AR20220007632 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1