IN THE CASE OF: 

		BOARD DATE:  20 October 2022

		DOCKET NUMBER: AR20210015285


APPLICANT REQUESTS:  reconsideration of his previous request to upgrade his under 
other than honorable conditions (UOTHC) characterization of service.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review of Discharge)
*	two DD Forms 149 (Application for Correction of Military Record)
*	legal brief
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Docket Number AR20080005603
*	Docket Number AR20170009966
*	Army Board for Correction of Military Records (ABCMR) memorandum
*	medical nexus letter
*	service treatment records
*	Kurta Memorandum
*	Army Regulation (AR) 15-185 (ABCMR) extract

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Numbers AR20080005603 on 5 June 2008 and 
AR20170009966 on 10 September 2020.

2.  In Docket Number AR 20170009966, the Board voted two to one to grant full relief of 
the applicant's request. However, after reviewing the findings, conclusions, and Board 
member recommendations, the Deputy Assistant Secretary of the Army, Army Review 
Boards Agency (DASA-RB), found that relief was not warranted. The applicant provides 
new medical evidence which warrants reconsideration by the board.

3.  The applicant states, in effect, the previous Board decided to upgrade his discharge 
to "under honorable conditions" in February 2021. His record needs to be updated for 
him to apply for veteran's benefits.

4.  Counsel states:

	a.  The recent denial of a discharge upgrade pertaining to the applicant was a 
violation of the applicant's constitutionally protected due process rights by overruling the 
majority board vote without providing the statutorily required statement of grounds for 
doing so. The previous Board voted to grant full relief for the applicant and the applicant 
meets the criteria under the Kurta Policy Memorandum for a discharge upgrade to a 
character of service of under honorable conditions (general).

	b.  Counsel requests the applicant's case be referred for appellate review by the 
DASA, if warranted, or be reconsidered by the ABCMR with the provided new and 
relevant evidence. These courses of action are in the best interests of all parties 
involved in lieu of the applicant pursuing civil litigation in a court of appropriate 
jurisdiction.

	c.  The applicant enlisted in the Army on 17 October 1970 and served one year and 
five months of active duty service. He was charged with being AWOL from 7 February 
1980 to 13 March 1980 and 21 March 1980 to 28 February 1981. Between his first and 
second AWOL, the applicant signed himself into a psychiatric ward for treatment on 
14 March 1980.

	d.  After being discharged he applied for an upgrade of the characterization of his 
service but did not provide any supporting documents. The ABCMR denied his request 
on 5 June 2008. The applicant then requested reconsideration of the previous denial 
and provided health care records for the period 17 March 1980 to 21 March 1980 as 
new and relevant evidence. Upon review of the health care records, the majority of the 
Board found that his mental health conditions were caused or \ aggravated by his 
military service and were at least as likely as not the reason why he went AWOL, 
leading to his separation from the Army. Based on this direct link between the 
applicant's health conditions and the actions leading to his discharge, the Board 
recommended upgrading the characterization of his service to under honorable 
conditions (general).

	e.  In recommending this upgrade for the applicant, the ABCMR provided a 
summation of the facts and a paragraph in justification for granting him an upgrade of 
his character of service. However, the DASA-RB, overturned the Board's upgrade and 
did so with only the conclusory statement that [the DASA-RB] "found that relief was not 
warranted." The applicant provides a medical nexus statement dated 23 March 2022, 
from a Psychiatric Nurse Practitioner who opined that the applicant had been in 
psychiatric treatment since 2010, and that his depression, anxiety, and suicidal ideation 
episodes first started in the military and resulted in the applicant going AWOL. 

5.  Counsel's argument will address two contentions and one administrative issue. First, 
the applicant meets the criteria for a discharge upgrade under the Kurta Policy 
Memorandum. Second, the DASA-RB's failure to provide the statutory required 
"reasons and bases" for his decision to overturn the Board's grant of benefits violated 
the applicant's procedural rights. Except for case law, references cited in support of 
arguments are provided as enclosures to this document.

	a.  The applicant meets the criteria for a discharge upgrade under the guidance from 
the Kurta Memorandum. The Kurta Memorandum directs that "[s]tandards for review 
should rightly consider the unique nature of these cases and afford each veteran a 
reasonable opportunity for relief even if the ... mental health condition was not 
diagnosed until years later". In this case, the applicant, has a current diagnosis of 
service-related depressive episodes, anxiety, and suicidal ideation leading to the pattern 
of substance abuse identified by a licensed mental health practitioner.

	b.  While on active duty the applicant was transferred from the psychiatric services at 
the Navy Regional Medical Center (NRMC) on 21 March 1980, with a diagnosis of acute 
psychosis. On 9 April 1980, he was discharged with a "diagnosis of acute anxiety with 
psychotic features manifested by significant amount of anxiety, depressed mood, 
hallucinatory experiences and blunting of affect with withdrawn isolation behavior." His 
medical records show that while in the hospital he related to the ward staff in a very 
superficial manner and remained mostly in an isolated and withdrawn state with 
evidence of psychomotor retardation. These records further show the applicant 
maintained auditory hallucinations until the time of his discharge [from the hospital] with 
recurrence of nightly dreams of being blown away in a foxhole with his friends. As 
previously mentioned, his psychiatric nurse practitioner, stated that he has been in 
psychiatric treatment since 2010 and that his depression, anxiety, and suicidal ideation 
episodes first started in the military and resulted in him going AWOL.

	c.  Consistent with the Kurta Memorandum, the applicant's records show not only a 
mental health condition diagnosed after service, but a mental health condition 
diagnosed while on active duty with a medical nexus letter verifying that his in-service 
mental health condition directly led to his subsequent AWOL, the reason for his 
discharge. The 10 September 2020, ABCMR Record of Proceedings also found 
sufficient evidence to show that the applicant was diagnosed with a behavioral health 
condition that existed prior to service and a secondary condition determined to have 
been in the LOD which may have resulted in him going AWOL and subsequently 
separated from service. As a result, the Board recommended upgrading the 
characterization of service to under honorable conditions (general). Therefore, for the 
above-stated reasons, consistent with Department of Defense guidance and in line with 
the previous ABCMR decision, they request that the applicant's discharge be corrected 
to reflect the Board's favorable decision.
	d.  The DASA-RB's failure to provide reasons and basis for his decision violated the 
applicant's constitutionally protected procedural due process rights. "Procedural due 
process imposes constraints on governmental decisions which deprive individuals of 
"liberty" or "property" interests within the meaning of the Due Process Clause of U.S. 
Constitution, amends V and XIV.". "Due process is flexible and calls for such procedural 
protections as the particular situation demands. Accordingly, resolution of the issue 
whether the administrative procedures are constitutionally sufficient requires analysis of 
the governmental and private interests that are affected. More precisely, identification of 
the specific dictates of due process generally requires consideration of three distinct 
factors:  First, the private interest that will be affected by the official action; second, the 
risk of an erroneous deprivation of such interest through the procedures used, and the 
probable value, if any, of additional or substitute procedural safeguards; and finally, the 
government's interest, including the function involved and the fiscal and administrative 
burdens that the additional or substitute procedural requirement."

	e.  The DASA-RB's denial of an application to correct the applicant's military records 
is a final agency action reviewable under the Administrative Procedure Act. Judicial 
review of the final decision of the ABCMR is limited to a determination of whether the 
Board's decision is arbitrary and capricious, contrary to law, or unsupported by 
substantial evidence." 

	f.  "When reviewing actions of the ABCMR, courts apply an unusually deferential 
application of arbitrary or capricious standard. Indeed, military boards are entitled to 
even greater deference than civilian administrative agencies. The substantial deference 
is calculated to ensure that the courts do not become a forum for appeals by every 
Soldier dissatisfied with his or her ratings, a result that would destabilize military 
command and take the judiciary far afield of its areas of competence. The ABCMR 
decision is therefore not arbitrary, capricious, or contrary to law as long as the decision 
minimally contains a rational connection between the facts found and choice made." 

	g.  With respect to the above judicial standards, AR 15-185 is written within the 
parameters of the Court's guidance by requiring the ABCMR and the Secretary of the 
Army, in a denial or reversion, to provide at a minimum a "rational connection between 
the facts found and the choices made." AR 15-185 requires the ABCMR, in the case of 
a denial, to provides a rationale for the denial in writing to the applicant. AR 15-185, 
paragraph 2-14, states "If the Secretary does not accept the ABCMR's 
recommendation, adopts a minority position, or fashions an action that he or she deems 
proper and supported by the record, that decision will be in writing and will include a 
brief statement of the grounds for denial or revision." In the applicant's case, the 
ABCMR awarded a full grant of benefits and provided a well-articulated justification for 
granting the applicant an upgrade of his character of service. The DASA-RB overruled 
the Board's decision and only provided the statement that [the DASA-RB] "found that 
relief was not warranted" which is inconsistent with the regulatory requirements of 
AR 15-185 and the holding in Chamness, 814 F. Supp. 2d at 9 (the decision must 
minimally contain a rational connection between the facts found and choice made). 
Therefore, the DASA-RB, acting on the Secretary's behalf, denied the applicant's 
application without providing the statutorily required "brief statement on the grounds for 
denial or revision." The Army's failure to provide the applicant with adequate notice of 
the grounds for overruling the ABCMR's full grant of his desired request relief violated 
his due process rights. Accordingly, the applicant deserves the relief described in this 
document.

	h.  For the reasons described above, the applicant has strong procedural due 
process violation case. If he pursued this matter in a federal district court, the court's 
most likely remedy would be a remand to the Army for further administrative 
procedures. The Secretary directing the remand to ABCMR for second reconsideration 
would avoid litigation and save valuable time and money for both parties. 

	i.  Therefore, if the Secretary of the Army decides not to reinstate the decision of the 
ABCMR that granted relief in the way of an under honorable conditions (general) 
characterization of service, counsel request the Secretary of the Army waive the 
requirements of AR 15-185, paragraph 2-15(b) to allow a second reconsideration of the 
applicant's discharge upgrade request.

	j.  The preponderance of the evidence supports a discharge upgrade, under the 
provisions of the Kurta Memorandum due to the applicant's in-service diagnosed and 
current mental health condition that directly resulted in him going AWOL, the impetus for 
his UOTHC discharge.

	k. In addition, the DASA-RB violated the applicant's constitutionally protected 
procedural due process rights in addition to AR 15-185 because, as contended, the 
DASA-RB failed to provide, per the governing regulation and jurisprudence, a "brief 
statement of the grounds for the reversal" in the denial of the ABCMR decision granting 
the relief sought by the applicant. The applicant will postpone a Federal review pending 
the outcome of this request.

6.  On 17 October 1979, the applicant enlisted in the Regular Army.

7.  His record contains a DA Form 2-1 (Personnel Qualification Record) which shows 
the applicant was absent without leave (AWOL) from:

*	7 February 1980 to 13 March 1980 (36 days)
*	21 March 1980 to 28 December 1981 (649 days), until placed in a desertion 
status
8.  On 5 January 1982, court-martial charges were preferred against the applicant for 
being AWOL from on or about 21 March 1980 to on or about 29 December 1981.

9.  The applicant underwent a mental status evaluation on 6 January 1982. The report 
shows the applicant had the mental capacity to understand and participate in the 
proceedings, was mentally responsible, and met the retention requirements in Army 
Regulation (AR) 40-501 (Medical Services-Standards of Medical Standards), chapter 3.

10.  He consulted with legal counsel on 6 January 1982.

	a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of 
an UOTHC characterization of service, and the procedures and rights that were 
available to him.

	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of AR 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 10, for the good of the service. In his request for discharge, he 
acknowledged his understanding that by requesting discharge, he was admitting guilt to 
the charge against him, or of a lesser included offense that also authorized the 
imposition of a bad conduct or dishonorable discharge. He further acknowledged he 
understood that if his discharge request was approved, he could be deprived of many or 
all Army benefits, he could be ineligible for many or all benefits administered by the 
Department of Veterans Affairs, and he could be deprived of his rights and benefits as a 
veteran under both Federal and State laws.

	c.  He elected not to submit a statement in his own behalf. However, the applicant 
was interviewed upon returning from AWOL and indicated that he went AWOL for 
financial reasons. He was unable to support his family on his E-1 salary. 

11.  The applicant was discharged on 12 February 1982, under the provisions of 
AR 635-200, Chapter 10, for conduct triable by court-martial. The DD Form 214 he was 
issued shows he was discharged in the lowest enlisted grade and his service was 
characterized as UOTHC.

12.  The applicant provides, and the record contains service medical records which 
show that he was hospitalized and subsequently diagnosed with passive-dependent 
personality which existed prior to entry; and situational reaction of adult life with 
psychotic features with did not exist prior to entry, probably due to alcohol abuse. As 
new evidence the applicant provides a physician statement, dated 23 March 2022, 
which shows the applicant has been treated for psychotic disorder and major 
depression since 2010 with the Department of Veterans Affairs. The psychiatric nurse 
practitioner stated that the applicant's episodes began while in the military and led the 
applicant to go AWOL. The applicant also had a pattern of substance abuse since 
military service.

13.  The issuance of a discharge under the provisions of AR 635-200, Chapter 10, 
required the applicant to have requested from the Army, voluntarily, willingly, and in 
writing, discharge in lieu of trial by court-martial.

14.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

15.  MEDICAL REVIEW:  The applicant is applying to the ABCMR requesting, through 
counsel, reconsideration of his previous request to upgrade his under other than 
honorable conditions (UOTHC) characterization of service.  The applicant contends, 
through counsel, that his misconduct was related to his behavioral health diagnoses.   

    a.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The 
applicant enlisted into the Regular Army on 17 October 1979; He was discharged on 12 
February 1982 under provisions of AR 635-200, Chapter 10, in lieu of trail by court-
martial for going AWOL; 3) The 10 September 2020 ABCMR Board found sufficient 
evidence the applicant was diagnosed with a behavioral health diagnosis while on 
active duty, warranting an upgrade, however, DASA-RB denied the upgrade; 4) The 
applicant, through counsel, has provided additional medical records showing he has 
been treated for psychotic disorder and major depression since 2010, related to military 
service. 

    b.  A review of the hardcopy military medical record shows the applicant was 
diagnosed with acute psychosis on or about 21 March 1980 at .  He was transferred to 
NRMC for inpatient treatment where he was diagnosed with acute anxiety with 
psychotic feature manifested by anxiety, depressed mood, hallucinatory experiences, 
and blunting affect. Additional diagnoses included passive-dependent personality 
disorder, existing prior to service, and situational reaction of adult life with psychotic 
features. While inpatient, the applicant’s main content of conversation reportedly 
centered around his desire to leave the service to get away from his untenable situation.  
His verbalizations were reportedly marked by fear of the future and his loss of mental 
health.   

    c.  A review of JLV shows the applicant diagnosed with other psychotic disorder not 
due to substances.  The BH record dated 22 March 2016 also states the applicant had 
been receiving treatment for psychosis at Unity Health System 2010, and the applicant 
disclosed to the treating provider that he’d been receiving BH treatment for psychotic 
and depressive disorder since 1979.  The applicant provided a memorandum from his 
current VA treating provider, dated 23 March 2022, that stating the applicant has a 
history of depressive episodes, anxiety and suicidal ideation that started during active 
service and led to the applicant going AWOL.

    d.  Based on the available information, it is the opinion of the Agency BH Advisor the 
applicant had a BH diagnosis that mitigated his misconduct.  

    e.  Kurta Questions:

(1)	Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? 

(a)	Yes. The applicant was hospitalized and diagnosed with BH conditions with 
acute psychotic features while on active duty.   

(2)	Did the condition exist or experience occur during military service? 

(a)	Yes. The applicant was psychiatrically hospitalized and diagnosed while on 
active duty.  He was additionally diagnosed with passive dependent 
personality disorder, determined to exist prior to service.

(3)	Does the condition or experience actually excuse or mitigate the discharge? 

(a)	Yes.  Evidence suggest the applicant’s BH disorders that manifested while on 
active duty were as likely as not the reason he went AWOL. The 10 
September 2020, ABCMR Board also found sufficient evidence to show that 
the applicant was diagnosed with a behavioral health condition determined to 
have been in the line of duty which may have resulted in him going AWOL   

BOARD DISCUSSION:

1. The Board carefully considered the applicant's request, counsel’s statement, 
supporting documents, evidence in the records, a medical review, and published 
Department of Defense guidance for liberal consideration of discharge upgrade 
requests. The Board considered the applicant's record of service, the frequency and 
nature of his misconduct, and the reason for his separation. The Board considered the 
applicant's behavioral health claim and the review and conclusions of the Army Review 
Boards Agency Medical Advisor.

2. The Board concurred with the Medical Advisor’s conclusion that the applicant had 
behavioral health conditions that mitigate his misconduct. Based on a preponderance of 
the evidence, the Board determined the applicant’s character of service should be 
changed to honorable.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant 
amendment of the ABCMR’s decision in Docket Numbers AR20080005603, 5 June 
2008, and AR20170009966, 10 September 2020.  As a result, the Board recommends 
that all Department of the Army records of the individual concerned be corrected by 
reissuing his DD Form 214 to show his character of service as honorable.

		  
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.  Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) 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.  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 10 of that regulation provided, in pertinent part, that a member who had 
committed an offense or offenses for which the authorized punishment included a 
punitive discharge, could submit a request for discharge for the good of the service in 
lieu of trial by court-martial. The request could be submitted at any time after charges 
had been preferred and must have included the individual's admission of guilt. Although 
an honorable or general discharge was authorized, a UOTHC discharge was normally 
considered appropriate.

2.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency 
generally refers to relief specifically granted from a criminal sentence. Boards for 
Correction of Military/Naval Records 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.

3.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to 
ensure that an applicant seeking corrective action by the Army Review Boards Agency 
(ARBA) be provided with a copy of any correspondence and communications (including 
summaries of verbal communications) to or from the Agency with anyone outside the 
Agency that directly pertains to or has material effect on the applicant's case, except as 
authorized by statute. ARBA medical advisory opinions and reviews are authored by 
ARBA civilian and military medical and behavioral health professionals and are 
therefore internal agency work product. Accordingly, ARBA does not routinely provide 
copies of ARBA Medical Office recommendations, opinions (including advisory 
opinions), and reviews to Army Board for Correction of Military Records applicants 
(and/or their counsel) prior to adjudication.

4.  AR 15-185 (ABCMR) states the Secretary of the Army may direct such action as he 
or she deems proper on each case. Cases returned to the Board for further 
consideration will be accompanied by a brief statement of the reasons for such action. If 
the Secretary does not accept the ABCMR’s recommendation, adopts a minority 
position, or fashions an action that he or she deems proper and supported by the 
record, that decision will be in writing and will include a brief statement of the grounds
for denial or revision.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210015285


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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