IN THE CASE OF:  

BOARD DATE:  15 June 2022

DOCKET NUMBER:  AR20210017274


APPLICANT REQUESTS:  The applicant requests: 

*	an upgrade of his undesirable discharge under other than honorable conditions 
(UOTHC) to a discharge under honorable conditions (General) to become eligible 
to receive Department of Veterans Affairs (DVA) benefits
*	to appear before the Board in Washington, D.C., at no expense to the 
government

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), dated 6 August 2021, in lieu of a DD Form 149 (Application 
for Correction of Military Record)
*	Defense Accounting Service Leave and Earnings Statements for the period of 
October 2002 to September 2006 (115 pages)
*	Medical Records (4 pages)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  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, in effect, his discharge should be upgraded due to his suffering 
from Post-Traumatic Stress Disorder (PTSD) resulting from his experiences during 
Operation Iraqi Freedom.  

     a.  He enlisted in 2002 and reenlisted in Iraq in 2004.  After returning to Fort Hood, 
Texas, he began to struggle with substance abuse and mental health disorder.  He was 
diagnosed with PTSD by a civilian psychiatrist at that time.  

     b.  He agreed to an administrative separation under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 after 
failing a drug test in 2006.  While awaiting separation, he flew home on emergency 
leave and was subsequently arrested during a mental health episode.  He did jail time 
and underwent treatment.  An Army Liaison Officer appeared in court and informed him 
that his separation under the provisions of Chapter 10 would proceed in his absence 
and that he did not need to return to Fort Hood.  

     c.  Later that year, he received a letter from the DVA stating that he had been 
discharged and may be eligible for DVA benefits.  He never followed up on this until 
recently, assuming that his discharge was bad and he would get no benefits.  In the last 
year he decided to apply for a discharge upgrade, however, much to my surprise I did 
not have a DD Form 214 (Certificate or Release or Discharge from Active Duty) on file 
anywhere.  He has tried to obtain his DD Form 214 from Army Human Resources 
Command, Fort Hood, the DVA, and the National Archives, but no agency has a 
DD Form 214 for him.  

     d.  He contacted the apprehension unit at Fort Hood and verified he is not in an 
absent without leave (AWOL) status and was told that even if he reported to Fort Hood, 
they could not accept him because they have no reason to do so.  

     e.  Everywhere he turns, he gets no help in this matter.  All agencies can see his 
period of service and that he was discharged, but no one can determine the character of 
his service.  He cannot receive any benefits.  He would like for this issue to be reviewed 
and to be issued a DD Form 214.  At the very least, he believes he is owed a 
DD Form 214 for his initial enlistment which was served honorably.  This would allow 
him to access the DVA benefits that he earned in combat.

3.  The applicant enlisted in the Regular Army for a period of 3 years on 24 June 2002.  
Upon completion of initial entry training, he was assigned to a unit at Fort Hood, Texas.

4.  The applicant deployed to the imminent danger pay area of Iraq from 15 March 2004 
to 14 March 2005.  

5.  On 27 December 2004, while serving in Iraq, he reenlisted for a period of 4 years.

6.  The applicant’s record is void of the specific documentation related to his request for 
discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial 
by court-martial.  However, his record contains A DD Form 214, which shows:

*	he was discharged on 12 May 2006
*	his service was characterized as “Under Other Than Honorable Conditions”
*	the separation authority was Army Regulation 635-200
*	the narrative reason for separation was “In lieu of trial by court-martial”
*	he was credited with completion of 3 years, 6 months and 7 days of net active 
service and his first full term of service during this period
*	he had lost time due to confinement from 10 April 2006 to 12 May 2006
*	he had continuous honorable active service from 24 June 2002 to 26 December 
2004

7.  The applicant provides:

     a.  Defense Finance Accounting Service, Leave and Earnings Statements depicting 
his monthly pay, allowances and leave activity during the period of October 2002 to 
September 2006.

     b.  Medical Records from an unspecified healthcare organization which show he 
received treatment for a diagnosis of PTSD, unspecified that was originally diagnosed 
on 17 June 2015.  The healthcare provider indicated the applicant:

*	was exposed to multiple traumatic events during active military service 
involving the actual threat of death and serious injury
*	reports response of intense fear, helplessness, and horror to the traumatic 
events
*	experiences disturbing and persistent thoughts, images, and/or perceptions of 
the traumatic events
*	experiences frequent nightmares
*	displays significant psychological and physiological distress resulting from 
internal and external clues that are reminiscent of the traumatic events
*	experiences disturbances in sleep
*	reports extreme hypervigilance
*	demonstrates an exaggerated startle response
*	symptoms have been present since active military service in 2004
*	exhibits significant impairment in social, occupational, and familial functioning

8.  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.

9.  The applicant acknowledges his misconduct but contends his diagnosed condition of 
PTSD was a contributing factor to his misbehavior.  He requests an upgrade so he can 
obtain DVA benefits.  He also desires to appear before the Board in Washington, D.C., 
at no expense to the government.

     a.  The issuance of a discharge under the provisions of Army Regulation 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.  It is presumed that all 
requirements of law and regulation were met and the rights of the applicant were fully 
protected throughout the separation process.  The applicant has provided no 
information that would indicate the contrary.  Further, it is presumed that the applicant’s 
discharge accurately reflects his overall record of service.  

     b.  The ABCMR does not grant requests for upgrade of discharges solely for the 
purpose of making the applicant eligible for veterans' benefits.  He completed 7 months 
of his 24-month contractual obligation.

	c.  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 applicant's request for a personal appearance hearing was carefully considered.  
However, by regulation, an applicant is not entitled to a hearing before the Board.  
Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  
In this case, the evidence of record and independent evidence provided by the applicant 
and his counsel is sufficient to render a fair and equitable decision at this time.  As a 
result, a personal appearance hearing is not necessary to serve the interest of equity 
and justice in this case.

     d.  At the time of the applicant's discharge, PTSD was largely unrecognized by the 
medical community and Department of the Defense (DOD).  However, both the medical 
community and DOD now have a more thorough understanding of PTSD and its 
potential to serve as a causative factor in a Soldier's misconduct when the condition is 
not diagnosed and treated in a timely fashion.  Soldiers who suffered from PTSD and 
were separated solely for misconduct subsequent to a traumatic event warrant careful 
consideration for the possible re-characterization of their overall service even if the 
sexual assault or sexual harassment was unreported, or the mental health condition 
was not diagnosed until years later.

	e.  Boards are to give liberal consideration to veterans petitioning for discharge relief 
when the application for relief is based in whole or in part of mental health conditions, 
including PTSD.  The veteran’s testimony alone, oral or written, may establish the 
existence of a condition or experience, that the condition or experience existed during or 
was aggravated by military service, and that the condition or experience excuses or 
mitigates the discharge.
10.  Published guidance to the BCM/NRs clearly indicates that the guidance is not 
intended to interfere or impede on the Board's statutory independence. The Board will 
determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. In reaching its determination, the Board shall consider the 
applicant's petition, available records and/or submitted documents in support of the 
petition.  

11.  MEDICAL REVIEW: 

The applicant is applying to the Army Board for Correction of Military Records (ABCMR) 
for an upgrade of his undesirable discharge under other than honorable conditions 
(UOTHC) to a discharge under honorable conditions (General) to become eligible to 
receive Department of Veterans Affairs (DVA) benefits.
    a.  The applicant states, in effect, his discharge should be upgraded due to his 
suffering from Post-Traumatic Stress Disorder (PTSD) resulting from his experiences 
during Operation Iraqi Freedom.  
    b.  The ABCMR Behavioral Health (BH) Advisor was asked to review this case. 
Documentation reviewed includes:
*	DD Form 293 (Application for the Review of Discharge from the Armed 
Forces of the United States), dated 6 August 2021, in lieu of a DD Form 149 
(Application for Correction of Military Record)
*	Defense Accounting Service Leave and Earnings Statements for the period of 
October 2002 to September 2006 (115 pages)
*	Medical Records (4 pages)
    c.  VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed.
    d.  A review of the Armed Forces Health Longitudinal Technology Application 
(AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were reviewed. 
    e.  AHLTA contains in-service BH diagnoses of Alcohol Dependence, Alcohol 
induced Anxiety Disorder, and Occupational Problem. JLV contains no additional BH 
diagnoses. The applicant is not service connected.
    f.  The applicant provided a document from a provider that indicated that the applicant 
is diagnosed with PTSD and that the PTSD symptoms are directly related to his military 
service. 
    g.  The applicant has approximately 20 ASAP encounters that contain limited 
information. 
    h.  AN MSE dated 22 FEB 2006 cleared him for administrative separation noting, “SM 
presented with no evidence indicating anxiety or mood disorder, or other condition that 
might lead one to believe that his actions were beyond his control.  Cleared for any 
administrative action deemed appropriate by command.” Of note is that the MSE was 
conducted for a Chapter 14 Separation, not a Chapter 10. This provider is not clear 
whether this was a separate chapter process.
    i.  A BH encounter dated 10 MAR 2006 indicates that the applicant has disciplinary 
charges pending including insubordination to an officer, lateness, and drinking on duty.  
    j.  It is important to note that while the applicant’s self-authored statement alleges, he 
agreed to a Chapter 10 separation after failing a drug test, it is unclear that this is the 
Basis of Separation.  The applicant stated he was not AWOL and on emergency leave, 
but then reported being arrested and doing jail time. The applicant refers to his being 
arrested during a “mental health episode”, but does not relate the behavior for which he 
was arrested and did jail time for. His BH provider also seems to reference “an incident 
at the home of his mother”, but again, the specifics of the incident are not mentioned.
    h.  After reviewing the available information and in accordance with the 3 Sep 2014 
Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it 
is the opinion of the Agency Behavioral Health advisor that while the applicant has a BH 
diagnosis of PTSD, medical mitigation cannot be determined without knowing the Basis 
for Separation.  The applicant is encouraged to provide documentation that includes his 
Basis for Separation, Chap 10 discharge or documentation related to a Chapter 14. 
    i.  Kurta Questions
(1) Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? 
      (a) Yes. PTSD
      (2) Did the condition exist or experience occur during military service? 
      (a) Yes. PTSD
      (3) Does the condition or experience actually excuse or mitigate the discharge? 
(a) No. After reviewing the available information and in accordance with 
the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 
2017 Clarifying Guidance, it is the opinion of the Agency Behavioral 
Health advisor that while the applicant has a BH diagnosis of PTSD, 
medical mitigation cannot be determined without knowing the Basis for 
Separation.

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted. The Board carefully considered the applicant's record of 
service, documents submitted in support of the petition and executed a comprehensive 
and standard review based on law, policy and regulation, and published Department of 
Defense guidance for liberal and clemency determinations requests for upgrade of his 
characterization of service.  Upon review of the applicant’s petition, available military 
records and medical review, the Board concurred with the advising official finding that 
while the applicant has a BH diagnosis of PTSD, medical mitigation cannot be 
determined without knowing the Basis for Separation.  The applicant is encouraged to 
provide documentation that includes his Basis for Separation, Chap 10 discharge or 
documentation related to a Chapter 14. The Board determined with no separation 
records it is unknown whether the applicant’s PTSD actually excuses or mitigates the 
discharge received by the applicant. The basis of the discharge cannot be determined 
to sufficiently access any medical mitigation of his case. The Board agreed there is 
insufficient evidence to make a determination if there is an error or injustice regarding 
the applicant’s discharge.  The Board recommends the applicant be provided a copy of 
his DD Form 214 that reflects his prior periods of honorable service.  However, the 
Board denied relief. 

2. This board is not an investigative body.  The Board determined despite the absence 
of the applicant’s separation records, they agreed the burden of proof rest on the 
applicant, however, he did not provide any supporting documentation and his service 
record has insufficient evidence to support the facts and circumstances surrounding his 
separation as well as the applicant contentions of a discharge upgrade.

3.  The applicant’s request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision.  As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.


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.

ADMINISTRATIVE NOTE(S):  N/A


REFERENCES:

1.  Title 10, USC, 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.  Title 10, United State Code, section 1556 provides the Secretary of the Army shall 
ensure that an applicant seeking corrective action by the Army Review Boards Agency 
(ARBA) is provided a copy of all correspondence and communications, including 
summaries of verbal communications, with any agencies or persons external to agency 
or board, or a member of the staff of the agency or Board, that directly pertains to or has 
material effect on the applicant's case, except as authorized by statute.

3.  Army Regulation 15-185 prescribes the policies and procedures for correction of 
military records by the Secretary of the Army, acting through the ABCMR.  The 
regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  It is not an investigative body.  
The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a 
hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

4.  Army Regulation 635-200, in effect at the time, prescribed policies and procedures 
for enlisted administrative separations.

	a.  An honorable discharge was a separation with honor; commanders issued an 
honorable discharge certificate based on the Soldier's proper military behavior and 
proficient duty performance.  Separation authorities could characterize a Soldier's 
service as honorable if he/she received at least "Good" for conduct, and at least "Fair" 
for efficiency.  In addition, the Soldier could not have one general court-martial or more 
than one special court-martial conviction.

	b.  A general discharge was a separation from the Army under honorable conditions, 
where the Soldier's military record was not sufficiently meritorious to warrant an 
honorable discharge.

	c.  Chapter 10 permitted a Soldier to request discharge for the good of the service 
when they had committed an offense or offenses which, under the UCMJ and the 
Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad 
conduct or dishonorable discharge as a punishment.  The Soldier could submit such a 
request at any time after court-martial charges were preferred; commanders had to 
insure no one coerced the Soldier into submitting a request for discharge and that the 
Soldier had a reasonable amount of time to consult with counsel.  If, after consulting 
with counsel, the Soldier chose to submit a separation request, he/she had to do so in 
writing, and the Soldier's counsel had to sign as a witness.  Once the separation 
authority approved the Soldier's discharge request, an undesirable discharge was 
normally furnished, but the separation authority could direct either an honorable or a 
general discharge, if warranted.

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; 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 to 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 DRBs 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. 

	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, 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.

	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)	 AR20210017274


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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