IN THE CASE OF: 
BOARD DATE: 30 January 2023 
DOCKET NUMBER: AR20220006095
 
APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge be upgraded. 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
DD Form 293 (Application for the Review of Discharge) 

. 
Self-Authored Statement 

. 
DD Form 214 (Certificate of Release or Discharge from Active Duty) 

. 
Medical Documents 


. Character Letter FACTS: 
1. 
Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Discharge Review Board or the Army Board for Correction of Military Records (ABCMR). 

2. 
The applicant states this is the only blemish on his record after all his years of service, making it to the rank of sergeant, and leading his section/section chief in combat. He is experiencing post-traumatic stress disorder (PTSD) and is a war Veteran. He didn’t receive the proper counseling or treatment before or after he got out. He still has nightmares and PTSD as well as other ailments. 

3. 
The applicant enlisted in the Regular Army on 12 May 1998, for 3 years. He reenlisted on 6 July 2000 and again on 19 August 2003. 

4. 
The applicant served in Iraq from 11 May 2003 to 10 October 2003. 

5. 
The applicant was reported as absent without leave (AWOL) on 19 January 2005. He was dropped from the rolls of his unit as a deserter on 19 February 2005. 

6. 
Court martial charges were preferred against the applicant on 19 February 2005 for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 19 January 2005, and remained so absent until he was apprehended. 

7. 
A Report of Return of Absentee shows the applicant was apprehended by civil authorities on 27 July 2005 and returned to the control of the military. 

8. 
The applicant underwent a medical examination for separation on 3 August 2005. His DA Form 3822-R (Report of Mental Status Evaluation) on 18 August 2005, shows he was referred for a psychiatric evaluation in conjunction with separation processing. There was no evidence of any psychiatric condition which would warrant disposition through medical channels. He was psychiatrically cleared for any administrative action deemed appropriate by his command. 

9. 
The applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, on 29 August 2005 for being AWOL from on or about 5 January 2005 to on or about 27 July 2005. His punishment consisted of reduction to E-4, forfeiture of $978.00 pay for one-month, extra duty, and restriction (suspended). 

10. 
On 21 September 2005, the applicant's immediate commander notified the applicant of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14­12c, by reason of misconduct – commission of a serious offense. 

11. 
The applicant acknowledged receipt of the proposed separation notification on the same date. He waived his right to consult with counsel and to appear before an administrative separation board. He elected not to submit a statement in his own behalf. 

12. 
The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 14. The commander recommended he be issued a general, under honorable conditions discharge. 

13. 
The applicant's chain of command recommended the applicant be issued an UOTHC discharge characterization. 

14. 
On 22 September 2005, the separation authority approved the recommended discharge and directed the applicant's reduction to the lowest enlisted grade with the issuance of an UOTHC Discharge Certificate. 

15. 
The applicant was discharged on 14 October 2005. His DD Form 214 shows he was discharged in the lowest grade, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, commission of a serious offense. His 

characterization of service was UOTHC. He completed 6 years, 10 months, and 23 days of active service. He lost time from 19 January 2005 to 28 July 2005. It also shows he was awarded or authorized the: Army Commendation medal (second award), Army Achievement Medal (second award), Army Good Conduct Medal, National Defense service Medal, Noncommissioned officer Professional Development Ribbon, Army Service Ribbon, Global War on Terrorism Service Medal, and the Iraq Campaign Medal. 

16. 
The applicant provides: 


a. 
A self-authored statement regarding the reasons for his request. The VA has turned him down several times, because of his type of discharge. He has been to civilian hospitals, but they don’t totally understand the situation he has been living with. He hopes to receive the proper treatment from people who understand or have dealt with and experience the symptoms he has, and he can only receive that at a VA hospital. 

b. He provides a medication reconciliation list and medical notes. 

c. 
In a character letter from his sister , she states the applicant was an energetic person and participated in Air Force Junior Reserve Officer Training Crops in high school. He was respected by Soldiers and admired for his leadership and work ethic. As a Veteran herself, she knew the Soldiers were not receiving the aftercare they needed when they returned home from combat. The applicant deployed twice and after the second deployment the family noticed a change in him. He seemed withdrawn, depressed, and he didn’t sleep much. He also complained about migraines and other pain in his body. He stated he had reached out to his leadership several times and still didn’t receive help. He couldn’t take going back into another combat zone. He felt his military leadership was not listening to what he had to say, so he went AWOL. He suffers from migraines, pain in his back and feet, and has signs of depression. He recently published his first book, and is working and taking care of his family. 


17. 
On 21 January 2015, the Army Discharge Review Board determined that he was properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge. 

18. 
By regulation, Soldiers are subject to separation under the provisions Army Regulation 635-200, Chapter 14, for commission of a serious offense. A discharge UOTHC is normally 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. 

19. 
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. 

20. 
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. 

21. 
MEDICAL REVIEW: 


a. 
The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends his discharge was related to PTSD. 

b. 
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 12 May 1998; 2) He served in Iraq from 11 May 2003 to 10 October 2003; 3) He was reported AWOL on 19 January 2005 and dropped from unit roles as a deserter on 19 February 2005; 4) Court-martial charges were preferred against him on 19 February 2005 for being AWOL from on or about 19 January 2005 and remained so absent; 5) He was returned to military control on 27 July 2005; 6) He accepted NJP under provisions of the UCMJ, Article 15, on 29 August 2005 for being AWOL from on or about 5 January 2005 to on or about 27 July 2005; 7) On 21 September 2005, the applicant's immediate commander notified the applicant of his intent to initiate separation actions against him; 8) The applicant was discharged on 14 October 2005 under provisions of AR 635-200, Chapter 14-12c, misconduct, serious offense. 

c. 
The military electronic medical record (AHLTA), VA electronic medical record (JLV), and ROP were reviewed. A review of AHLTA showed that applicant’s only BH-related engagement, during his time in service, occurred on 18 August 2005, when he underwent a Report of Mental Status Evaluation. The examiner found the applicant to meet diagnostic criteria for Occupational Stressor and determined there was no 


evidence of any psychiatric condition which would warrant disposition through medical channels. The applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. A review of JLV was void of any treatment history related to the applicant and he does not have a service-connected disability. Included in the applicant’s packet were treatment records from , dated 14 October 2012 that appears to show the applicant was treated in the emergency department for neck pain, with edema, that had onset two weeks prior to the encounter. The records also included medication reconciliation and discharge instructions. No other hardcopy military or civilian treatment records were provided for review.   
d. Based on the available information, it is the opinion of the Agency BH Advisor that there is no evidence in the records that the applicant had a condition or experience that mitigated his misconduct. However, the applicant contends his misconduct was related to PTSD, and per Liberal Consideration policy his contention is sufficient to warrant the Board’s consideration.  
Kurta Questions: 
1. 
Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends his misconduct was associated with PTSD. He provides no additional content or context. 

2. 
Did the condition exist or experience occur during military service? Yes. 

3. 
Does the condition or experience actually excuse or mitigate the discharge? Partial. Although the applicant contends his misconduct was related to PTSD, there is no evidence in the records that the applicant was diagnosed with PTSD for received any BH-related treatment during or after military service. Additionally, he provided no documentation supporting his contention, nor additional content or context related to a traumatic experience. 


BOARD DISCUSSION: 
After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation 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 Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case 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 635-200 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 14 of this regulation established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A UOTHC discharge was normally considered appropriate. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 


3. 
The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], 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. 

4. 
The Acting Principal Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 

5. 
The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards 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. 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. 
a. 
Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. 

b. 
An honorable discharge characterization does not require flawless military service. Many Veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. 

c. 
Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 


6. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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. 


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