IN THE CASE OF: 
 
  BOARD DATE: 5 September 2023 
 
  DOCKET NUMBER: AR20220011783 
 
 
APPLICANT REQUESTS:  
 
• reconsideration of the portion of the group petition submitted on his behalf by the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA M&RA) for upgrade of his under other than honorable conditions (UOTHC) discharge 

• to appear in person before the Board via video/telephone 


 
APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record) 
 
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 Number AR20170002930 on 4 January 2018 in response to the group petition submitted by the Office of the ASA M&RA on 29 September 2016. 
 
2.  The applicant states, in effect, he appeared before an Administrative Separation Board (ASB) on or about 11 May 2012. His legal counsel did not provide exceptional representation for him. Counsel remained seated during the ASB and did not show any interest in helping prove his innocence. The applicant was not provided any documentation for the ASB and was expedited through clearing and out-processing his duty station. Although he separated several years ago, he still has not received his Official Military Personnel File or Medical Treatment Record. He has multiple service connected injuries and cannot afford outside care. Since his separation, he has not had any legal trouble, he furthered his education, and he is currently working as a sales manager. 
 
3.  The applicant enlisted in the Regular Army on 28 August 2002 for a period of 6 years. He served in Iraq from 26 June 2006 until 7 September 2007. 
 
4.  On 30 October 2008, the applicant reenlisted in the Regular Army for a period of 6 years. He served in Afghanistan from 15 July 2010 until 4 November 2010. 
 
5.  The applicant's record is void of documentation showing the facts and circumstances regarding his administrative separation under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14, for Misconduct – Serious Offense. However: 
 
     a.  Orders 143-00003, issued by United States Army Garrison-Hawaii, Schofield Barracks, Hawaii on 22 May 2012 show he was discharged from the Regular Army in the rank/grade of private/E-1, effective 25 May 2012. 
 
     b.  DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was involuntarily discharged from active duty on 25 May 2012 in the grade of E-1, under the provisions of AR 635-200, Paragraph 14-12c, due to Misconduct (Serious Offense) (Separation Code JKQ, Reentry Cod 3) with his service characterized as UOTHC. He was credited with completion of 9 years, 8 months, and 28 days of net active service. His DD Form 214 shows he had continuous honorable service from 28 August 2002 until 29 October 2008. He w 
 
6.  AR 635-200, chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier's overall record. 
 
7.  The ASA M&RA submitted an application on behalf of a group of Soldiers requesting that the ABCMR: 
 
     a.  Consider whether a potential violation of Title 10, U.S. Code section 1177 (For Members diagnosed with or reasonably asserting post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI), a medical examination is required before separation) occurred during the Soldiers' separation processing. 
 
     b.  Determine whether a diagnosis of PTSD and/or TBI should result in an upgrade of the Soldiers' characterizations of service. The application stated the ASA M&RA was unable to confirm that these Soldiers' PTSD and TBI diagnoses were considered by the separation during separation processing. 
 
8.  On 21 March 2017, a staff member of the Case Management Division of the Army Review Boards Agency (ARBA) requested the applicant provide a copy of medical 
documents that support his issue of PTSD and afforded him a period of 60 days to do so. He did not respond to the request. 
 
9.  On 28 April 2017, an ARBA staff Medical Advisor/Psychologist rendered a medical advisory opinion wherein it was noted, in part, "His discharge was brought on by a train of events that occurred when, according to a Department of Defense note dated 28 July 2011, he was accused by a 13 year-old girl of having sex with her when she was 11. In the note, it appeared the child was claiming that the applicant was owed money and he agreed to forgive the debt in return for having sex with the 11 year-old girl. In an AHLTA [Armed Forces Health Longitudinal Technology Application] note on the session, he denied having molested the child, saying he did not have the tattoos she described him as having. In any event the child apparently made the charges in 2010, and the applicant was under investigation by the Army CID [Criminal Investigation Division] from that point until at least toward late 2011 or sometime in 2012. During his service, he had behavioral-health visits, and was seen on as far back as 2009, perhaps earlier, for marital problems. Notes in the JLV [Joint Longitudinal Viewer] showed the applicant reported he was physically abused by his father. It was unclear if the abuse had a sexual element. One note described the father having punched the applicant in the face when the applicant was an 11 year-old boy. The father also would assault the applicant's mother. Notes showed diagnoses that included Marital Problems, ADHD [attention deficit hyperactivity disorder] (residual), ADD [attention deficit disorder], Anxiety NOS [not otherwise specified], and History of Concussion. His pre-discharge Mental Status Exam on 20 March 2012. The examiner showed he screened negative for PTSD and, despite his history, negative for sequelae of TBI. She found him fit for duty, as meeting medical retention standards, as able to understand and participate in administrative proceedings, and as knowing right from wrong. For the most part few records were available. Available records included no CID report or discharge proceedings. He has no reported service connected disability from the VA [Veterans Administration] according to the JLV as of 28 April 2017. In short, his TBI, PTSD and other mental health conditions were considered at the time of discharge. He has no mitigating behavioral health conditions. Further, if the child’s accusation is correct, there is no condition that would mitigate having sex with an 11 year-old girl in return for forgiving a debt. 
 
     a.  The advisory official concluded: 
 
          (1)  The applicant did meet established medical regulatory retention standards that were applicable during his era of service. 
 
          (2)  It was unknown if the applicant's mental-health conditions were considered at the time of his discharge from the Army. 
 
          (3)  A review of available documentation did not discover evidence of a mental-health consideration that bore on the character of the discharge in this case. A mitigating nexus between the applicant's misconduct and his mental health was not discovered. 
 
     b.  On 1 May 2017, the advisory opinion was provided to the applicant, and he was afforded a period of 30 days to respond. The applicant did not provide a response. 
 
10.  On 24 January 2018, the applicant was informed the ABCMR had considered his application under procedures established by the Secretary of the Army and denied his application. The Board stated:  
 
 a.  The applicant was separated under the provisions of AR 635-200 due to misconduct, serious offense, as documented on his DD Form 214. There is no evidence showing he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process. 
 
 b.  The medical advisory opinion notes his mental health evaluation showed a negative screening for both TBI and PTSD. It is unknown, however, if the applicant’s mental health conditions were considered at the time of his discharge from the Army.  The medical advisory official considered the facts and circumstances of this case and concluded there was no mental health condition that would have mitigated the misconduct that led to his discharge. 
 
11.  AR 15-185 (ABCMR) 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 has occurred by a preponderance of the evidence. It is not an investigative body. 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. 
 
12.  In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition.   
 
13.  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 applying to the ABCMR requesting an upgrade of his 25 May 2012 under than other than honorable conditions discharge .  He states: 
“SM [service member] was sent before a chapter review board on or about 05/11/2012.  SM had legal counsel that did not provide exceptional counseling for SM.  Legal sat down the duration of the board meeting and did not show any interest in helping SM prove innocence.  Service member did not receive any paperwork for board and was expeditated on clearing his duty station at the time.  
SM also had to wait several years for his medical records and still hasn't received his OMPF [official military personnel file] either. SM has two prior honorable discharges from reenlistments and those cannot be found either.  SM has multiple service-connected injuries and cannot afford outside care.” 
    c.  The Record of Proceedings details the applicant’s military service and the circumstances of the case.  The applicant’s DD 214 for the period of Service under consideration shows he entered the regular Army on 28 August 2002 and was discharged under other than honorable conditions on 25 May 2012 under the separation authority provided by paragraph 14-12c of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): Commission of a serious offense.  It also shows his rank was Private (E01) at the time of discharge. 
    d.  This request was previously denied in full on 24 January 2018 (AR20170002930).  Rather than repeat their findings here, the board is referred to the record of proceedings and the well-researched medical advisory opinion for that case.  This review will concentrate on the new evidence submitted by the applicant. 
    e.  Other than the new DD 149, no new evidence was submitted with the application.   
    f.  JLV shows the Veteran’s Hospital Administration has not diagnosed with applicant with a post-service mental health condition and he has no service-connected disabilities. 
    g.  There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his UCMJ violations and/or other actions which led to his reduction in rank to Private (E01) and an under other than honorable characterization of service; 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.  Furthermore, there is no evidence that any 
medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge.   
    h.  It is the opinion of the ARBA medical advisor a discharge upgrade and/or a referral to the Disability Evaluation System remain unwarranted. 
 
BOARD DISCUSSION: 
 
1.  The Board determined 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. 
 
2.  After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The facts and circumstances surrounding his separation are not available. However, his DD Form 214 shows he was discharged from active duty for misconduct – commission of a serious offense with an under other than honorable conditions discharge. 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. 
 
     a.  The Board reviewed and was persuaded by the medical official’s finding no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his UCMJ violations and/or other actions which led to his reduction to private and an under other than honorable characterization of service; 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 disability evaluation system prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. Additionally, the applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination.  
 
     b.  In the absence a separation packet or the facts surrounding his separation, the Board determined 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 
 
xx: xx: xx: 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 to amend the decision of the ABCMR set forth in Docket Number AR20170002930 on 4 January 2018. 
 
  9/5/2023

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 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.  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. 
 
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 has occurred by a preponderance of the evidence. It is not an investigative body. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. 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 sets forth the basic authority for the separation of enlisted personnel.  
 
 a.  Paragraph 3-7a provides that 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.  Paragraph 3-7b states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 
 
5.  Army Regulation 635-5-1 (Separation Program Designator) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JKQ" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c, by reason of Misconduct. Additionally, the SPD/RE Code Cross Reference Table established that 
RE Code "3" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 
 
6.  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 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. 
 
7.  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; TBI; 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. 
 
8.  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. 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. 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//