IN THE CASE OF:  
 
  BOARD DATE: 20 July 2023 
 
  DOCKET NUMBER: AR20220012012 
 
 
APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to general under honorable conditions.   
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record) 
 
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 states, in effect, when he was in advanced individual training (AIT), he was instructed by his drill sergeant to attend therapy because of a miscommunication between himself and one of his platoon members. When he saw the therapist, she performed rapid eye movement (REM) therapy. This opened up a door to his childhood trauma. He is requesting an upgrade so that he may seek mental health assistance from a professional at the Veterans Affairs (VA) hospital.   
 
3.  The applicant was asked, via letter from Case Management Division, dated  24 February 2023, to provide a copy of the medical documents that support his mental health issues (Post-Traumatic Stress Disorder (PTSD) and TBI). As of the date of this writing, medical documents were not submitted 
 
4.  A review of the applicant’s service record shows: 
 
a. He enlisted in the Regular Army on 2 February 2000. 


 
b. DA Form 458 (Charge Sheet), dated 6 April 2001, reflects the applicant was being charged with the following: 


 
• Charge (Violation of the UCMJ, Article 86) 


• Specification:  absenting himself, without authority, from his organization on or about 6 December 2000 and did remain so absent until on or about  8 January 2001   

• Specification:  absenting himself, without authority, from his organization on or about 9 January 2001 and did remain so absent until on or about  27 March 2001   


 
c. On 6 April 2001, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, 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 dishonorable discharge  

• he 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 

• he was advised he could submit any statements he desired in his own behalf; he elected not to submit statements in his own behalf 


 
d. Headquarters, U.S. Army Personnel Control Facility memorandum, dated  14 December 2001, written by the commander, Subject:  Request for Discharge in Lieu of Trial by Courts-Martial, recommending discharge under other than honorable conditions. As of note, there is no explanation as to why the memorandum was forwarded to the separation approving authority for appropriate action eight (8) months after the applicant requested discharge. 


 
e. The separation authority approved the applicant's request for discharge on  15 January 2002, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, and directed that he be discharged under other than honorable conditions and reduced to private E-1. 


 
f. His DD Form 214 reflects he was discharged on 29 January 2002, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, and his service was characterized as under other than honorable conditions. He served 1 year, 8 


months, and 8 days of net active service this period. He had lost time from 6 December 2000 to 7 January 2001 and from 9 January 2001 to 26 March 2001. 


 
5.  On 4 February 2009, the Army Discharge Review Board (ADRB) carefully examined the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale. The Board determined that the discharge was both proper and equitable and voted to deny relief.   
 
6.  AR 635-200 states a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 
 
7.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 
 
8.  MEDICAL REVIEW: 
 
    a.  The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. On his application, he noted a traumatic brain injury (TBI), military sexual trauma (MST), negative consequences from Don’t Ask Don’t Tell policies, and mental health conditions, including PTSD were mitigating factors in the circumstances that resulted in his separation which mitigated his misconduct.  
    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 in the Regular Army on 2 February 2000; 2) The applicant went AWOL from 06 December 2000-08 January 2001 and then again 09 January 2001-27 March 2001; 3) The applicant was discharged on 29 January 2002, Chapter 10, in lieu of trial by court-martial. His service was characterized as UOTHC. 
    c.  The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. 
    d.  The applicant asserts he was referred to behavioral health services while attending advanced individual training, and he was provided rapid eye movement therapy. These services, he stated “opened the door to his childhood trauma.” Due to the time of his service, there is no record of these services or his report of mental health conditions. There is also insufficient evidence the applicant was exposed to a TBI, MST, 
or negative consequences related to DADT. Also, the applicant did not discuss any issues related to these conditions or experiences in his narrative reasoning for correction. A review of JLV provided evidence the applicant has been provided assistance for homelessness and opioid dependence from the VA. However, the applicant receives no service-connected disability.  
    e.  Based on the available information, it is the opinion of this advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct.  
Kurta Questions 
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he experienced a TBI, MST, negative consequences from Don’t Ask Don’t Tell policies, and mental health conditions, including PTSD that contributed to his misconduct.  
    (2)  Did the condition exist or experience occur during military service?  Yes, the applicant contends he experienced a TBI, MST, negative consequences from Don’t Ask Don’t Tell policies, and mental health conditions, including PTSD while on active service.  
    (3)  Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing TBI, MST, negative consequences from Don’t Ask Don’t Tell policies, and mental health conditions, including PTSD while on active service. The applicant did go AWOL, which can be a sequalae to these reported experiences and mental health conditions, but this is not sufficient to establish a history of a condition during active service. In addition, the applicant only described experiencing behavioral health treatment which was directed at understanding his childhood trauma. However, the applicant contends he was experiencing a mental health condition and experience that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 
 
 
BOARD DISCUSSION: 
 
The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense 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 applicant's PTSD/TBI/sexual assault claims and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence 
of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding there being insufficient evidence indicating his misconduct was mitigated by any behavioral health conditions.  Based on a preponderance of the evidence, 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 for correction of the records of the individual concerned. 
  7/27/2023

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, USC, 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 Army Board for Correction of Military Records (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 635-200 (Personnel Separations – Enlisted Personnel), 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 provides that 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 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 
 
3.  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 under other than honorable conditions, 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.  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; sexual harassment.  Boards were directed 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 that misconduct which led to the discharge. 
 
5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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 based on 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. 
 
6.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 
 
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