ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE: 13 June 2019 
DOCKET NUMBER: AR20170018323

APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 
(UOTHC) discharge to a general, under honorable conditions discharge (GD).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
*	Personal Statement
*	Medical documents
   *	Pre-Sentence Investigation Report 
FACTS:
1.	The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records 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:

   a.	He was told the Department of Veterans Affairs (VA) was upgrading discharges if 
you served during Operation Enduring Freedom (OEF)/Operation Iraqi Freedom (OIF). 
He served during OIF. He has paperwork done by the Oklahoma Department of 
Correction stating his post-traumatic stress disorder (PTSD) was the leading cause of 
committing his crime. The Army kept him 6 month past his expiration of term of service 
knowing he was in jail without pay. He had asthma due to being near a burn-pit in Iraq 
and could not pass a physical fitness test within a year. He should have been 
discharged long before he was actually discharged.

   b.	He only received non-judicial punishment (NJP) on one occasion.  There was a 
lot going on, his ex-wife indicated to his commander that he was having as extramarital 
affair and his commander took her side; however, he was never found guilty. His ex- 
wife was never going to give him a divorce if he had continued to pay her $700.00 per 
month so he did not pay her and she signed the divorce papers within 30 days. He
   


missed a debt payment because he tried to help a fellow Soldier and he was dealing 
with PTSD. He hit rock bottom and did not care about anything. His grass was not cut 
and his first sergeant gave him an order to cut it and he didn’t care. He never got into 
any trouble while in Germany. He reenlisted and got an honorable discharge and 
continued to serve honorably.

   c.	He was supposed to receive a chapter 14 discharge in June 2011; however, 
Dr. W would not clear him until he underwent at least 12 weeks of PTSD treatment. 
This pushed his discharge back to September 2011. He got arrested 10 days prior to 
his discharge.  He was prescribed medication for PTSD which was increased 3 days
prior to committing his crime. He was not in the right state of mind when he committed 
his crime. He committed one crime; however, he got 10 charges. He was robbed and 
found out who robbed him and he got his stuff back. The rage that took over him was 
unbearable. The things taken from him were given to him by his battle buddies in Iraq. 
He did everything he was taught in training. They cleared the house, got his stuff, and 
left.

   d.	He had a profile for asthma and other breathing problems and he should have 
been sent to a medical board. His unit kept him in the Army in order to screw him over. 
His issues are all due to PTSD and being medicated. His unit failed him. He needs an 
upgrade in order to get the benefits he fought for and deserve. His service was 
honorable.

3.	He accepted NJP punishment under Article 15 of the Uniform Code of Military 
Justice on 20June 2011, for the following offenses:
*	failing to obey a lawful general regulation on or about 1 June 2011
*	failing to obey a lawful order on or about 31 May 2011
*	failing to pay debt from 21 December 2010 to 14 June 2011
*	failing to pay debt from on or about 1 March 2011 to on or about 1 May 2011

4.	A DA Form 3822-R (Report of Mental Status Evaluation), dated 6 April 2012 shows 
the applicant was incarcerated. The applicant did not present with any condition that 
warrants disposition through medical channels. The applicant had behavioral health 
treatment in the past but was not consistent in his follow up. The applicant is currently 
taking psychotropic medication for mood and impulse control assistance. The applicant 
does not present with problems related to traumatic brain injury (TBI) or PTSD that 
warrant continued attention or treatment. The applicant does have issues, they are a 
combination of childhood experiences exacerbated by his deployment. The applicant is 
psychiatrically cleared for any administrative action deemed appropriate by command.

5.	On 9 May 2013, his company commander notified him that he was initiating action to 
separate him under the provisions of Army Regulation 635-200 (Personnel Separations
- Enlisted Personnel), paragraph 14-5, for Conviction by Civil Court.  The commander



stated the reason for the proposed action was the applicant was convicted of conspiracy 
to commit robbery with a firearm; three counts of robbery with a firearm and six counts 
of kidnapping.  The applicant was informed of his rights and acknowledged notification 
of receipt.
6.	After being advised by consulting counsel of the basis for the contemplated action to 
separate him for Conviction by Civil Court and its effects; of the rights available to him; 
and the effects of any action taken by him in waving his rights. He declined the 
opportunity to consult with counsel and did not submit statements in his own behalf. He 
acknowledged he understood he could expect to encounter substantial prejudice in 
civilian life if a GD was issued to him. He further understood as the result of issuance of 
a discharge UOTHC he may expect to encounter substantial prejudice in civilian life.
7.	On 13 June 2013, the approval authority approved the applicant’s discharge under 
the provisions of Army Regulation 635-200, chapter 14, due to conviction by civil court. 
He directed the issuance of a UOTHC discharge.

8.	His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he 
was discharged accordingly due to misconduct – conviction by civil court. He 
completed 1 year, 6 months, and 28 days of net active service, with lost time from 20 
September 2011 through 3 July 2013. His service was characterized as UOTHC. He 
served in Iraq from 1 December 2008 through 7 November 2009. He was awarded or 
authorized the following:

*	Iraq Campaign Medal with two Campaign Stars
*	National Defense Service Medal
*	Global War on Terrorism Service Medal
*	Army Service Ribbon
*	Overseas Service Ribbon (2nd Award)

9.	On 14 July 2014, the Army Discharge Review Board denied his request for an 
upgrade of his UOTHC discharge.
10.	On 2 February 2018, the ABCMR obtained an advisory opinion from a Clinical 
Psychologist with Army Review Boards Agency (ARBA), who states, in part, based on 
thorough review of available medical records, there is evidence the applicant engaged 
in significant misconduct during his time in service and behavioral health conditions are 
not reasonably related to the misconduct which led to his early separation. This 
observation does not negate the applicant’s diagnosis of PTSD or deployment 
experiences; however, there is no evidence that a behavioral health condition mitigated 
the applicant’s misconduct. A copy of the complete medical advisory was provided to 
the Board for their review and consideration.

11.	On 5 February 2018, the applicant was provided a copy of the opinion and given 
the opportunity for comment or rebuttal.  He did not respond.






12.	Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel. Chapter 14 establishes policy and prescribes procedures for separating 
members for misconduct. Specific categories include minor disciplinary infractions (a 
pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern 
of misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), commission of a serious offense, and 
convictions by civil authorities. Action will be taken to separate a member for misconduct 
when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A 
discharge under other than honorable conditions is normally appropriate for a Soldier 
discharged under this chapter.
13.	Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or 
Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth 
policies, responsibilities, and procedures that apply in determining whether a Soldier is 
unfit because of physical disability to reasonably perform the duties of his office, grade, 
rank, or rating.

14.	Army Regulation 40-501(Standards of Medical Fitness) governs medical fitness 
standards for enlistment; induction; appointment, including officer procurement 
programs; retention; and separation, including retirement. Once a determination of 
physical unfitness is made, the physical evaluation board (PEB) rates all disabilities.

15.	Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military 
Departments with authority to retire or discharge a member if they find the member unfit 
to perform military duties because of physical disability. Soldiers are referred to the 
disability system when they no longer meet retention standards in accordance with 
Army Regulation 40-501.

16.	In reaching its determination, the Board can consider the applicant's petition, his 
statements, and available service record, in light of the published Department of 
Defense guidance on equity, injustice, or clemency.

BOARD DISCUSSION:
After review of the application and all evidence, the Board found insufficient evidence to 
grant relief. The board applied Office of the Secretary of Defense standards of liberal 
consideration and clemency to the complete evidentiary record, including the 
applicant’s statement and the medical advisory opinion and did not find any evidence  
of error, injustice, or inequity.  The Board agreed with the medical advisory that there  
is evidence the applicant engaged in significant misconduct during his time in service 
and behavioral health conditions are not reasonably related to the misconduct which 
led to his early separation.  The Board further agreed that this observation does not



negate the applicant’s diagnosis of PTSD or deployment experiences; however, there 
is no evidence that a behavioral health condition mitigated the applicant’s misconduct 
that led to the applicant’s Discharge. The Board agreed that the applicant’s discharge 
characterization is appropriate for the serious misconduct; it 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.



X 

CHAIRPERSON

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.


ADMINISTRATIVE NOTE(S):  Not Applicable

REFERENCES:

1.	Title 10, USC, 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 Army Board for Correction of Military Records



(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.
   a.	Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct. Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), commission of a serious offense, and 
convictions by civil authorities. Action will be taken to separate a member for misconduct 
when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A 
discharge under other than honorable conditions is normally appropriate for a Soldier 
discharged under this chapter.  However, the separation authority may direct a GD if such 
is merited by the Soldier’s overall record. Only a general court-martial convening authority 
may approve an HD or delegate approval authority for an HD under this provision of 
regulation.
   b.	A GD is a separation from the Army under honorable conditions. When 
authorized, it was issued to a Soldier whose military record was satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.
3.	Army Regulation 635-40 establishes PDES and sets forth policies, responsibilities, 
and procedures that apply in determining whether a Soldier is unfit because of physical 
disability to reasonably perform the duties of his office, grade, rank, or rating. Only the 
unfitting conditions or defects and those which contribute to unfitness will be considered 
in arriving at the rated degree of incapacity warranting separation for disability.
   a.	The disability system assessment process involves two distinct stages: the 
Medical Evaluation Board (MEB) and PEB. The purpose of the MEB is to determine 
whether the service member’s injury or illness is severe enough to compromise his or 
her ability to return to full duty based on the job specialty designation of the branch of 
service. A PEB is an administrative body possessing the authority to determine whether 
or not a service member is fit for duty.  A designation of "unfit for duty" is required 
before an individual can be separated from the military because of an injury or medical 
condition. Service members who are determined to be unfit for duty due to disability are 
either separated from the military or are permanently retired, 3depending on the severity 
of the disability and length of military service. Individuals who are "separated" receive a 
one-time severance payment, while veterans who retire based upon disability receive 
monthly military retirement payments and have access to all other benefits afforded to 
military retirees.
   


   b.	The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness. In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating. 
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty. A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.
4.	Army Regulation 40-501(Standards of Medical Fitness) governs medical fitness 
standards for enlistment; induction; appointment, including officer procurement 
programs; retention; and separation, including retirement. Once a determination of 
physical unfitness is made, the PEB rates all disabilities. The VA Schedule for Rating 
Disabilities is used by the Army and the VA as part of the process of adjudicating 
disability claims. It is a guide for evaluating the severity of disabilities resulting from all 
types of diseases and injuries encountered as a result of, or incident to, military service. 
This degree of severity is expressed as a percentage rating which determines the 
amount of monthly compensation.

4.	Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability. Soldiers are referred to the disability 
system when they no longer meet retention standards in accordance with Army 
Regulation 40-501.

5.	On 3 September 2014 the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations and mitigating factors when taking action on applications from former 
service members administratively discharged UOTHC and who have been diagnosed 
with PTSD by a competent mental health professional representing a civilian healthcare 
provider in order to determine if it would be appropriate to upgrade the characterization 
of the applicant's service.

6.	On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole or in part to: mental health conditions, including PTSD; 
traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give 
liberal consideration to Veterans petitioning for discharge relief when the application for 
relief is based in whole or in part on those conditions or experiences. The guidance 
further describes evidence sources and criteria and requires Boards to consider the



conditions or experiences presented in evidence as potential mitigation for misconduct 
that led to the discharge.

7.	On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and 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 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. 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//