IN THE CASE OF:  

		BOARD DATE:  2 August 2023

		DOCKET NUMBER:  AR20220009299


APPLICANT REQUESTS:  Reconsideration of his previous request for an upgrade of 
his under other than honorable conditions (UOTHC) discharge to an honorable 
discharge, and a personal appearance before the Board. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:  

*	Electronic DD Form 149 (Application for Correction of Military Record)
*	Army Review Boards Agency (ARBA), Case Management Division, email 
requesting supporting medical documents, dated 24 February 2021

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 Dockets Number AR20140019906 on 7 July 2015 and 
AR20180016132 on 10 September 2020, respectively. 

2.  As a new contention, the applicant states a Department of Veterans Affairs, 
Endocrinologist diagnosed him with pituitary adenomas on 12 August 2021. He asserts, 
this condition is known to cause depression, anxiety, and irrational behavior, and 
combined with his grandmother’s death led to him going absent without leave (AWOL) 
and subsequent separation. His contention of being placed on suicide watch was 
previously considered.

3.  On 2 June 1995, the applicant enlisted in the Regular Army for a 4-year service 
obligation. Upon completion of training and award of military occupational specialty 11B 
(Infantryman), he was assigned to the 65th Military Police Battalion, Fort Bragg, NC. 

4.  On 26 March 1996, the applicant was reported AWOL from his unit, and 
subsequently dropped from the rolls as a deserter on 24 April 1996. He was returned to 
military control on 24 August 1996 after being apprehended by civilian authorities. 

5.  Court-martial charges, were preferred against him for violations of the Uniform Code 
of Military Justice (UCMJ); specifically, one specification of AWOL from 26 March 1996 
until 24 August 1996. However, the relevant charge sheet is not available for review.

6.  The applicant’s previous record of proceedings indicate on 4 September 1996, after 
consulting with counsel, he voluntarily requested discharge under the provisions of 
Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, 
for the good of the service. In his request, he acknowledged he was making the request 
of his own free will, that no one had subjected him to coercion, and that counsel had 
advised him of the implications of his request. He further acknowledged he was guilty of 
one specification of violating Article 81, and six specifications of violating Article 134 of 
the UCMJ. He elected not to submit a statement in his own behalf. 

7.  On 16 October 1996, the separation authority approved the applicant's request for 
discharge in lieu of court-martial. He directed the applicant's reduction to the lowest 
enlisted grade and the issuance of an UOTHC Discharge Certificate. 

8.  On 8 January 1997, he was discharged accordingly. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) confirms he was discharged under the 
provisions of Army Regulation 635-200, Chapter 10, in lieu of court-martial. His service 
was characterized as UOTHC. He was credited with completing 1 year, 2 months, and 
5 days of net active service, with one period of lost time.

9.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial.

10.  On 14 June 2006, the Army Discharge Review Board, considered the applicant's 
request for a discharge upgrade, and determined he was properly and equitably 
discharged and denied his petition for relief. 

11.  On 7 July 2015, the ABCMR considered the applicant’s petition for an upgrade of 
his discharge. After careful consideration, the Board determined his characterization of 
service was neither in error nor unjust. Accordingly, his request for relief was denied. 

12.  On 10 September 2020, the ABCMR considered the applicant's request for upgrade 
of his discharge. In the processing of that case the Board considered the following:  

   a.  The ARBA Medical Advisor opined and stated in accordance with the 
3 September 2014, Secretary of Defense Liberal Guidance Memorandum and the 
25 August 2017, Clarifying Guidance there was no documentation to support a 
behavioral health condition at the time of the applicant’s discharge. There was no 
documentation to suggest he did not meet retention at the time of his discharge. There 
was no documented behavioral health condition to consider with respect to mitigation of 
the misconduct that led to his discharge. In addition, the applicant’s own statement 
indicated he went AWOL because his unit would not give him leave to attend his great 
grandmother’s funeral and subsequently stayed AWOL for 152 days until apprehended 
by civilian authorities. 

   b.  The Board determined after careful consideration of his military records and all 
other available evidence, that he was properly discharged, and denied his request. 

13.  In reaching its determination, the Board can consider the applicant’s petition, 
arguments and assertions, and service record in accordance with the published equity, 
injustice, or clemency guidance.

14.  MEDICAL REVIEW:  

    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review 
this case.  Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  
    b.  The applicant is again applying to the ABCMR requesting an upgrade of his 8 
January 1997 discharge characterized as under other than honorable conditions.  He 
states:
“Was informed I have pituitary adenomas (empty sella syndrome) known to 
cause depression, anxiety, and irrational behavior.  On top of other challenges,  
my grandmother passed.  I was counseled about my condition on 20210812 by 
the endocrinologist County Clinic … 
I also was placed on suicide watch while serving  65th Military Company was 
counseled hospital & placed on watch in the barracks.”
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His DD 214 for the period of Service under consideration 
shows he entered the regular Army on 2 July 1995 and was discharged on 8 January 
1997 under the separation authority provided chapter 10 of AR 635-200, Active Duty 
Enlisted Administrative Separations (26 June 1996): Discharge in Lieu of Trial by Court-
Martial.  The DD 214 show lost time under 10 USC § 972 from 26 March 1996 thru 24 
August 1996 thru (152 days).  The DD 214 lists no periods of service in a hazardous 
duty pay area.
    d.  This request has been denied in full three times; 14 July 2006 - AR20050012236; 
7 July 2015 - AR20140019906; and 10 September 2020 - AR20180016132.  Rather 
than repeat their findings here, the board is referred to the records of proceedings and 
medical advisory opinion for the 2020 case.  
    e.  No medical documentation or additional evidence was submitted with the 
application and his period of Service predates AHLTA in AHLTA.
    f.  Personnel Actions (DA From 4187) show he was declared absent without leave 
(AWOL) on 26 March 1996 and dropped from rolls (DFR) on 25 April 1996.  A 
DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) shows the applicant 
was declared a deserter effective at 0600 on 25 April 1996.  A Report of Return of 
Absentee (DD Form 616) shows the applicant was apprehended on 25 August 1996 by 
civilian authorities in, and then transferred to military authorities.
    g.  From the 2018 medical advisory opinion:

“A review of VA’s Joint Legacy Viewer (JLV) indicates he has received treatment 
in the VA since August 2018.

On 23 August 2018, he was seen for a triage screening and endorsed symptoms 
of depression secondary to unstable housing and financial strain.  On 17 October 
2018, his provider noted continued depressive symptoms secondary to chronic 
pain and diagnosed him with Mood Disorder due to physiological condition. He 
was seen for the same diagnosis on 27 March 2020.

In accordance with the 3 September 2014 Secretary of Defense Liberal
Guidance Memorandum and the 25 August 2017, Clarifying Guidance there is no
documentation to support a behavioral health condition at the time of his 
discharge.  There is no documentation to suggest he did not meet retention at 
the time of his discharge. There is no documented behavioral health condition to 
consider with respect to mitigation of the misconduct that led to his discharge. In 
addition, the applicant’s own statement indicates he went absent without leave 
because his unit would not give him leave (AWOL) to attend his great 
grandmother’s funeral and subsequently stayed AWOL for 152 days until 
apprehended by civilian authorities.”

    h.  Review of his records in JLV show he was diagnosed with major depressive 
disorder in 2018 and received care from the Veterans Hospital Administration (VHA).  
He is eligible for care as a humanitarian emergency and has no service-connected 
disabilities.

    i.  There continues to be insufficient probative evidence the applicant had a mental 
health or other medical condition which would have then contributed to or would now 
mitigate his UCMJ violation; or that would have failed the medical retention standards of 
chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to 
the DES prior to his discharge.  

    j.  It is the opinion of the ARBA medical advisor that a discharge upgrade remains  
unwarranted.

Kurta Questions:
(1)	 Did the applicant have a condition or experience that may excuse or mitigate the 
discharge?	
	NO
(2)	 Did the condition exist or experience occur during military service?
	N/A
(3)	 Does the condition or experience actually excuse or mitigate the discharge?
N/A


BOARD DISCUSSION:  

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, 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 insufficient probative evidence the applicant 
had a mental health or other medical condition which would have then contributed to or 
would now mitigate his UCMJ violation; or that would have failed the medical retention 
standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for 
referral to the DES prior to his discharge. 

2.  The Board noted, the applicant provided insufficient evidence of post-service 
achievements or character letters of support that would attest to his honorable conduct 
and mitigated the applicant’s discharge characterization.  The Board found insufficient 
evidence of in-service mitigating factors for the misconduct to weigh a clemency 
determination. The Board determined the applicant’s service record exhibits numerous 
instances of misconduct during his enlistment period for 1 year, 2 months, and 5 days of 
net active service, with one period of lost time. Furthermore, the Board agreed the 
applicant has not demonstrated by a preponderance of evidence an error or injustice 
warranting the requested relief, specifically an upgrade of the under other than 
honorable conditions (UOTHC) discharge to an honorable discharge.  Therefore, the 
Board denied relief.


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 found 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 to amend the decision of the ABCMR set forth in Docket 
Number AR20140019906 on 7 July 2015 and AR20180016132 on 10 September 2020.


		 
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 1556, provides the Secretary of the Army shall ensure 
that an applicant seeking corrective action by 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. 

2.  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 ABCMR has the discretion to hold a hearing; applicants do not have a right to 
appear personally before the Board. The Director or the ABCMR may grant formal 
hearings whenever justice requires. 

3.  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 10 provided 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. 

4.  On 3?September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRB) and Service Boards for Correction of Military/Naval Records 
(BCM/NR) to carefully consider the revised post-traumatic stress disorder (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. 

5.  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. 

6.  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, 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. 

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220009299


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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