IN THE CASE OF:  

		BOARD DATE:  28 April 2020

		DOCKET NUMBER:  AR20180003596


APPLICANT REQUESTS:  his general discharge under honorable conditions discharge 
(GD) be upgraded to an honorable discharge (HD).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Medical documents from the Department of Veteran Affairs (VA)
*	Letter of support

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the 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 was suffering from an undiagnosed mental health condition 
which caused his discharge from the Army.

3.  The applicant enlisted in the Regular Army on 20 March 1997.

4.  On an unspecified date, the applicant's commander notified him action was being 
initiated to discharge him for serious misconduct under the provisions of Army 
Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14
paragraph 12c for commission of a Serious Offense.  The reason for this action was on 
or about 12 February 1998, the applicant stole a check, altered it by filling in his name, 
and cashed it, stealing $250.00, these were violations of Articles 121 and 123, UCMJ. 
On or between 24 September 1997, the applicant wrongfully used amphetamine, 
marijuana, and ecstasy, each a controlled substance. These incidents were in violation 
of Article 112a, UCMJ.  The applicant also had a pattern of minor disciplinary problems, 
including failure to repair on numerous occasions.  The commander was recommending 
a GD.  The applicant was advised of his available rights and he acknowledged receipt.

5.	The applicant acknowledged notification of separation action, consulted with legal 
counsel, voluntarily waived consideration of his case by an administrative separation
board, and did not submit statements in his own behalf.

6.  On an unspecified date, the appropriate authority approved the applicant's discharge 
under the provisions of Army Regulation 635-200, paragraph 14-12c, for a commission 
of a serious offense.  He directed the applicant be issued a GD Certificate.

7.  On 2 November 1998, the applicant was discharged under the provisions of Army 
Regulation 635-200, paragraph 14-12c.  His service was characterized as under 
honorable conditions (general).  

8.  The applicant provides documents from VA showing he has a 50 percent disability 
rating for PTSD effective 16 September 2013.

9.  His record is void of documentation that shows he was treated for an injury or an 
illness that warranted his entry into the Physical Disability Evaluation System (PDES).  
Additionally, there is no indication he was issued a permanent physical profile or 
underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).

10.  On 30 March 2020, ABCMR obtained an advisory opinion from a Medical Advisor 
with Army Review Boards Agency (ARBA), who states, in part, the applicant received a 
separation physical and mental health evaluation and was cleared for administrative 
separation thus meeting retention standards prior to his separation.  Post-traumatic 
stress disorder (PTSD) is partially mitigating for the misconduct that led to his 
discharge. PTSD is a mitigating factor for the drug use but not for the premeditated 
behavior of stealing a check, forging a signature, and cashing the check for $250.  A 
copy of the complete medical advisory was provided to the Board for their review and 
consideration.

11.  The applicant was provided a copy of the advisory opinion for comment or rebuttal; 
however, he did not respond. 

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, 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, 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 considered appropriate for a Soldier discharged 
under this chapter.  However, the separation authority may direct a general discharge if 
such is merited by the Soldier’s overall record.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) establishes the Army Disability Evaluation System 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 
retirement or separation for disability.  Paragraph 3-2 states disability compensation is 
not an entitlement acquired by reason of service-incurred illness or injury; rather, it is 
provided to Soldiers whose service is interrupted and who can no longer continue to 
reasonably perform because of a physical disability incurred or aggravated in military 
service.

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

BOARD DISCUSSION:

1.  The Board carefully considered the applicants request, supporting documents, 
evidence in the records, a medical advisory opinion and published DoD guidance for 
liberal consideration of discharge upgrade requests.  The Board considered the 
applicant's statement, his record of service, the frequency and nature of his misconduct, 
and the reason for his separation.  The Board considered the medical records and 
conclusions of the advising official.  The Board concurred with the medical advisory 
opinion finding insufficient evidence of in-service mitigating factors to overcome the 
misconduct.  The Board agreed PTSD is a mitigating factor for the drug use, but not for 
the premeditated behavior of stealing a check, forging a signature, and cashing the 
check for $250.  The Board found the applicant provided no evidence of post-service 
achievement 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.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: XXX	:XX	:XXX	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, 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, in effect at the time, 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, 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 considered appropriate for a Soldier discharged 
under this chapter.  However, the separation authority may direct a general discharge if 
such is merited by the Soldier’s overall record.

	b.  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.

3.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who 
may be unfit to perform their military duties because of physical disability.  The unfitness 
is of such a degree that a Soldier is unable to perform the duties of his office, grade, 
rank or rating in such a way as to reasonably fulfill the purposes of his employment on 
active duty.  The regulation essentially requires that the service member must have 
voluntarily enlisted; must be in basic, advanced individual, on-the-job, or service school 
training prior to award of a military occupational specialty and must not have completed 
of more than 179 days of active duty on the current enlistment by the date of separation.  
The regulation provided that Soldiers may be separated when they have demonstrated 
that they are not qualified for retention due to failure to adapt socially or emotionally to 
military life; cannot meet minimum standards prescribed for successful completion of 
training because of lack of aptitude, ability, motivation, or self- discipline; or have 
demonstrated character and behavior characteristics not compatible with satisfactory 
continued service.

4.  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. 

5.  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//
ABCMR Record of Proceedings (cont)	 AR20180003596


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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