IN THE CASE OF: 
BOARD DATE: 19 May 2023 
DOCKET NUMBER: AR20220010987 

APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge. Additionally, he requests a personal appearance before the Board via video/telephone. 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
Letter from the National Personnel Records Center (NPRC), dated 31 July 2014 


FACTS: 
1. 
The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, Section 1552(b); 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, in effect, states that he began to self-medicate due to post-traumatic stress disorder (PTSD) incurred during his first enlistment, while deployed to a combat zone (Operation Just Cause). Upon discovery of self-medication, his chain of command refused/denied treatment. He made two previous attempts to retrieve his records; but he was told no records were found, which discouraged him and caused depression. 

3. 
On his DD Form 149, the applicant notes PTSD is related to his request, as a contributing, and mitigating factor in the circumstances that resulted in his separation. 

4. 
The applicant enlisted in the Army National Guard on 11 January 1988. After completion of training, he was awarded military occupation specialty 11B (Infantryman). 

5. 
His DA Form 2-1 (Personnel Qualification Record) shows he served in an imminent danger pay area (Panama), from 20 December 1989 to 31 January 1990. 

6. 
The applicant enlisted in the Regular Army on 15 November 1995. He extended his enlistment on 13 January 1998 and reenlisted on 11 August 2000, for 3 years. The highest grade he attained was E-5. 

7. 
On 16 December 2002, the applicant tested positive for marijuana. 

8. 
By sworn statement, on 7 January 2003, the applicant admitted he went through a court-martial in March 2002, for wrongful use, possession, and buddy distribution for marijuana as an E-5. He swore that since July 2002, he has not used illegal substances. 

9. 
By sworn statement, on 9 January 2003, the applicant admitted he does have a problem with marijuana; however, he does not actively seek it out, but when it’s presented to him, it is a struggle. 

10. 
Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ) on an undetermined date in February 2003. However, the relevant DD Form 458 (Charge Sheet) outlining the charges and specifications is not available for review. 

11. 
The applicant consulted with legal counsel on or about 28 February 2003 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a bad conduct discharge; and the procedures and rights that were available to him. 


a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. 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 Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. 
b. He elected to submit his previous sworn statement in his own behalf. 
12. 
The applicant's chain of command recommended approval of his request for discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. 

13. 
On 6 March 2003, consistent with the chain of command's recommendation the separation authority approved the applicant's request for discharge in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade and the issuance of an UOTHC discharge. 

14. 
The applicant was discharged on 16 April 2003. 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 trial by court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 7 years, 5 months, and 2 days of net active service this period. He was awarded or authorized the: 

. 
Army Good Conduct Medal 

. 
National Defense Service Medal (2nd Award) 

. 
Armed Forces Expeditionary Medal 

. 
Army Service Ribbon 

. 
Expert Marksmanship Qualification Badge with Rifle Bar 

. 
Combat Infantryman Badge 

. 
Parachutist Badge 

. 
Ranger Tab 



15. 
The applicant provides a letter from the NPRC which shows the original medical records needed to answer his inquiry were not in their files; however, he was provided various in-service documents. 

16. 
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. 

17. 
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. 

18. 
MEDICAL REVIEW: 


a. 
Background: The applicant is requesting an upgrade of his Other than Honorable Discharge to a General or Honorable Discharge. The applicant asserts that PTSD mitigates his discharge. 

b. 
The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: 


. 
Applicant enlisted into the Army National Guard on 11 January 1988. 

. 
He deployed to Panama from 20 December 1989 to 31 January 1990. Per medical records, he also reported deploying to Desert Storm, Iraq in 1990-1991. 

. 
Applicant enlisted in the RA 14 November 1995, extended 13 January 1998, and reenlisted 11 August 2000. 

. 
He tested positive for marijuana 16 December 2002. Per a sworn statement 7 January 2003, the applicant admitted to going through a court-martial in March 2002 for use, possession and “buddy distribution” of marijuana. 

. 
In February 2003 court martial charges were preferred against him for making a false statement and wrongful use of a controlled substance. 

. 
He consulted with legal on 28 February 2003 and the applicant requested a discharge in lieu of trial by court, under the provision of AR 635-200, Chapter 10. 

. 
Applicant was discharged 16 April 2003 under AR 635-200, Chapter 10 with an UOTHC. 

c. Review of Available Records Including Medical: 

d. 
The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), Letter from NPRC dated 31 July 2014, DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. The applicant also made note that he’s made efforts on two occasions to get his medical records but has been told no records were found (2014 and 2019). Lack of citation or discussion in this section should not be interpreted as lack of consideration. 

e. 
The applicant asserts that his misconduct was mitigated by PTSD, as he was using substances to self-medicate symptoms associated with his first deployment. He also asserts that his command team denied him treatment. In his sworn statement near the time of his separation process, the applicant repeatedly noted having a problem with marijuana use and needing help. Though, he did not report anywhere in this self-statement that he was struggling with mental health or self-medicating, though did mention some stress as he transitioned toward ETS. There is a counseling statement form 30 January 2003 that stated he’d been referred for a mental health evaluation as part of the separation process, however the results of this were not available. In addition, no medical nor mental health records were provided from his time in service, though the applicant provided evidence that he has attempted to access them. There is currently no indication that he held a mental health diagnosis during his time in service. Though, given lack of electronic health records at the time of his service, this is not uncommon. 

f. 
Since the applicant’s discharge, he has engaged in care at the VA. He was seen by primary care 23 November 2007, where he reported having previously been diagnosed with PTSD (during a court mandated custody evaluation) and continued to describe symptoms consistent with PTSD, while reporting being in combat during 


Panama and Desert Storm. He engaged in group care in 2008, continuing to hold the PTSD diagnosis as well as Adjustment Disorder with Depressed Mood. There was a gap in mental health care at the VA from 2008 until 2019, though he returned to care in 2019 reporting symptoms of PTSD secondary to deployment as well as unprocessed childhood trauma. He was referred for ongoing care but appears to have discontinued. There is no current evidence of additional treatment. The applicant has been service connected with the VA, to include 50% for PTSD. 
g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant has been diagnosed with a mitigatable condition since his time in service, and that his diagnosis has been deemed service connected. There is minimal evidence he held the diagnosis during his time in service, however per Liberal Consideration guidance, 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 asserts PTSD. 

2. 
Did the condition exist or experience occur during military service? Yes. The applicant asserts a mitigating condition during his time in service (PTSD), as well as a substance use concerns for which he reports he was not allowed treatment. 

3. 
Does the condition or experience actually excuse or mitigate the discharge? Partial. There is sufficient evidence that the applicant has been diagnosed with a service-connected mitigating condition (PTSD) since his time in service, though there is minimal evidence beyond self-report that the applicant was experiencing a mental health condition at the time of his misconduct as no medical records are available for review. The applicant’s misconduct included some behaviors consistent with the natural history and sequelae of PTSD, as there is a nexus between self-medicating through substance use and PTSD. However, there is no nexus between giving false statements (directly related to his discharge), nor “buddy distribution” (related to his history of misconduct that may or may not have played a role in his discharge). This misconduct is not part of the natural history or sequelae of PTSD. PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. 


h. It should also be noted that substance use disorders are not typically a mitigating condition as a stand-alone diagnosis. However, had he experienced even one substance related incident serving in more recent years, he would have been referred to the Army Substance Abuse Program (ASAP) or Substance Use Disorder Clinical Care (SUDCC) for, at minimum, an assessment. 
BOARD DISCUSSION: 
1. 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 noted there is no nexus between giving false statements, nor “buddy distribution” and PTSD, as it does not affect one’s ability to distinguish right from wrong and act in accordance with the right. The Board concurred with the advisory official finding insufficient evidence of in-service mitigating factors to overcome the misconduct. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 

2. 
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. 

3. 
Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction be completed to more accurately depict the military service of the applicant. 


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: 
Except for the correction addressed in Administrative Note(s) below, 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 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): 
A review of the applicant's record shows his DD Form 214, for the period ending 16 April 2003, is missing important entries that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry in item 18 (Remarks): CONTINUOUS HONORABLE SERVICE FROM 951115 UNTIL 000810 
REFERENCES: 
1. 
Title 10, U.S. Code, 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 


a. 
Paragraph 2-9 states 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. 

b. 
The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 
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. 
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, 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. 

5. 
The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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. 

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. 


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