IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20230003091 APPLICANT REQUESTS: * an upgrade of his under honorable conditions (general) discharge to honorable * to have his rank of sergeant (SGT)/E-5 reinstated APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 that he is requesting an upgrade of his characterization of service from under honorable conditions (general) to honorable and to have the rank of SGT reinstated. On the applicant’s DD Form 149, he marked an “X” in the box for “Sexual Assault/Harassment,” but circled the word “harassment” and further indicated he was harassed and treated unfairly by his company commander and forced out of the Army. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 August 1977. b. His DA Form 2-1 shows his dates of rank as follows: * Private (PV1) – 17 August 1977 * Private (PV2) – 17 February 1978 * Private First Class (PFC) – 17 August 1978 * Specialist (E4) – 1 April 1979 * Sergeant (E5) – 2 March 1983 * Specialist (E4) – 8 March 1985 * Private (E2) – 11 April 1985 c. On 25 February 1985, the applicant accepted nonjudicial punishment for violation of Article 112a of the UCMJ as a result of wrongfully using marijuana between on or about 20 November 1985 and 29 November 1985. His punishment included reduction to Specialist (E-4), forfeiture of $522 for two months, and extra duty for 45 days. He did not appeal the Article 15 nor demand trial by court-martial. d. On 11 April 1985, the applicant accepted nonjudicial punishment for violation of Article 112a of the UCMJ as a result of wrongfully using marijuana on or about 8 February 1985. His punishment included reduction to Private (E-2), forfeiture of $150 for two months, and extra duty and restriction for 30 days. He did not demand trial by court-martial but did elect to appeal the Article 15 and submit matters on his behalf. The applicant’s record was void of the submitted matters. The appellate authority denied his appeal on 18 April 1985. e. On 16 May 1985, the applicant signed and dated a counseling statement informing him of the commander’s intent to recommend him for administrative separation as a drug abuse rehabilitation failure, in accordance with Chapter 9, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), f. In an undated memorandum to the applicant’s commander, the applicant was identified as command referred to the Army Alcohol and Drug Prevention and Control Program (ADAPCP) on 18 December 1984. The memorandum states that since being enrolled in the program, the applicant had marginal participation, a poor attitude, lack of motivation, and continued abuse of drugs. The ADAPCP staff considered the applicant to be a rehabilitative failure, in accordance with the criteria of AR 600-85 (Alcohol and Drug Abuse Prevention and Control Program). g. The applicant’s immediate commander notified him of his intent to separate him under the provisions of AR 635-200, Chapter 9 for alcohol or other drug abuse rehabilitation failure and the applicant acknowledged receipt. The specific reasons for his proposed action were the applicant received two Article 15’s for wrongful use of marijuana and continued to abuse the same. The commander further noted the applicant’s attitude towards further military service was negative and his military bearing was below unit standard. h. The applicant’s election of rights did not contain a signature from counsel, nor an election made by the applicant; however, the applicant signed indicating he acknowledged: * he was entitled to have his case heard before an administrative separation board because he had more than 6 years of service * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * he may apply to the Army Discharge Review Board or the ABCMR for an upgrade request * he will be ineligible to apply for enlistment in the U.S. Army for a period of two years following discharge i. The separation packet is void of the initiation of separation. j. On 21 May 1985, the intermediate commander concurred with the company commander’s recommendation, and recommended approval of separation under the provision of AR 635-200, Chapter 9. k. On 22 May 1985, consistent with the chain of command recommendations, the separation authority approved the applicant's discharge under the provisions of AR 635- 200, paragraph 9. He would be issued a General Discharge Certificate. l. The applicant was discharged from active duty on 10 June 1985 with a general, under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 years, 9 months, and 24 days of active service with no lost time. He was assigned separation code JPC and the narrative reason for separation listed as “Drug Abuse – Rehabilitation Failure,” with a reentry code of 3-3C. It also shows in Block 4a (Grade, Rate, or Rank) PV2 and Block 4b (Pay Grade) E-2. 4. On 30 June 2023, the Criminal Investigation Division, indicated a search of the Army criminal file indexes utilizing the applicant’s information revealed no records pertaining to a Request for Sanitized Report of Investigation. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 635-200), a member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. 7. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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. 2. The Board found no basis for restoring his rank to SGT considering the repeated misconduct that eventually led to his reduction to pay grade E-2. The Board determined the applicant’s reduction in grade 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. When a person is reduced in grade as a result of an unsuspended reduction, his or her date of rank in the grade to which reduced is the date the punishment of reduction was imposed. If, however, a reduction is set aside and all rights, privileges, and property are restored, the member concerned will be entitled to pay as though the reduction had never been imposed. 4. Army Regulation 635-5 (Separation Documents), in effect at the time, states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. In Block 4 (Grade, Rate or Rank) enter active duty grade or rank and pay grade at time of separation from ERB/ORB. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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 of the regulation states a member may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program when there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical or when long-term rehabilitation is necessary, and the member is transferred to a civilian medical facility for rehabilitation. The service of members separated because of drug abuse rehabilitative failure will be characterized as honorable or under honorable conditions as warranted by their military record. 6. 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. 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 based on 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. 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) AR20230003091 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1