IN THE CASE OF: 

		BOARD DATE: 8 February 2023

		DOCKET NUMBER: AR20220003852


APPLICANT REQUESTS:  upgrade of his characterization of service from under other 
than honorable conditions to honorable and change of Separation Code.

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 he experienced sexual and mental harassment by his drill 
sergeant and other ranks. He also suffered from bipolar depression and post-traumatic 
stress disorder (PTSD). At the time, he was unclear as to treatment. 

3.  Review of the applicant’s service records shows: 

	a.  The applicant enlisted in the U.S. Army Reserve on 2 February 1985. 

	b.  He was ordered to active duty on or about 3 July 1985; however, he failed to 
report to active duty. He was reported in an absent without leave (AWOL) status. 
Additionally, on 2 August 1985, he was dropped from the rolls as a deserter. 

	c.  On 4 September 1986, he surrendered to military authorities at Fort Lewis, WA. 

	d.  On 24 October 1986, court-martial charges were preferred against him for 
resisting arrest, disorderly conduct, assault, and disobeying orders. His DD Form 458 
(Charge Sheet) shows he was charged with one specification of AWOL from on or 
about 8 July 1985 to on or about 4 September 1986. 

	e.  On 24 October 1986, the applicant consulted with legal counsel. He was advised 
of the basis for the contemplated trial by court-martial for an offense punishable by a 
bad conduct discharge or a dishonorable discharge, the maximum permissible 
punishment authorized under the Uniform Code of Military Justice, the possible effects 
of a request for discharge, and of the procedures and rights that were available to him.  
Following consultation with legal counsel, he requested discharge under the provisions 
of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of 
the service - in lieu of trial by court-martial. In his request for discharge, he indicated:

*	he was making this request of his own free will and had not been subjected to 
any coercion by any person 
*	he understood that by requesting discharge he was admitting guilt to the 
charges against him or of a lesser included offense that also authorized the 
imposition of a bad conduct or dishonorable discharge
*	he understood that, if his request for discharge is accepted, he may be 
discharged under conditions other than honorable and furnished an Under 
Other Than Honorable Discharge Certificate
*	he acknowledged he understood that if the discharge request was approved, 
he could be deprived of many or all Army benefits, that he could be ineligible 
for many or all benefits administered by the Veterans Administration (VA), 
and that he could be deprived of his rights and benefits as a veteran under 
both Federal and State law
*	he stated "under no circumstances do I desire further rehabilitation for I have 
no desire to perform further military service"
*	he did not elect to submit a statement in his own behalf 

	f.  On 14 April 1987, the separation authority approved the applicant's request for 
discharge under the provisions of AR 635-200, chapter 10, for the good of the service - 
in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued 
an under other than honorable conditions discharge. The applicant was accordingly 
discharged on 27 October 1987. 

	g.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active 
Duty) shows he was discharged in accordance with chapter 10 (in lieu of trial by court-
martial) of AR 635-200 with an under other than honorable conditions characterization 
of service (Separation Code KFS, Reentry Codes 3/3B/3C). He completed 1 year, 1 
month, and 9 days of active service. His DD Form 214 also shows:

*	he had lost time from 8 July 1985 to 9 September 1985
*	he had excess leave from 24 October 1986 to 27 October 1987
*	he did not complete training and was not awarded an MOS 

	h.  There is no indication he petitioned the Army Discharge Review Board for review 
of his discharge within that board’s 15-year statute of limitations. 

4.  By regulation (AR 635-200), Chapter 10: 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. A discharge under other than honorable 
conditions is normally considered appropriate.

5.  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.

6.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an upgrade of his discharge 
from UOTHC and change in separation code.

    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)	He asserts sexual and mental harassment in training by his drill sergeants and 
others.  He also suffered from bipolar depression and PTSD. At the time he was 
unclear to treatment.
(2)	He enlisted in the USAR on 2 February 1985.  He was ordered to active duty 
on/about 3 July 1985 however he failed to report and was reported as AWOL.  
He was DFR on 2 August 1985. On 4 September 1986 he surrendered to military 
authorities. 
(3)	Court-martial charges were preferred on 24 October 1986. Charge Sheet shows 
he was charged with one specification of AWOL from o/a 8 July 1985 to o/a 4 
September 1986.
(4)	His DD214 shows he was discharged IAW AR 635-200 Chapter 10 (in-lieu of 
court-martial), UOTHC, with a separation date of 27 October 1987.
    c.  Supporting Documents

Applicant asserts, in essence, PTSD, other mental health conditions (bipolar disorder), 
and “sexual and mental harassment in training” associated with his request. 

Certain dates on his DA Form 2-1 are of problematic legibility, but the form appears to 
note enlistment date into USAR of 850702 (ROP indicates 2 February 1985) and 
ordered to initial ADT on 8507(unclear – 08?).  Documented as AWOL 850708 and DFR 
850802; returned to present for duty status 860910.  Lost time 429 days due to AWOL 
850708 to 860909.
Personnel Action (reconstructed) dated 26 March 1987 shows unit of AWOL was US 
Army Reception Station, Ft. Knox, KY; his effective date of AWOL was 8 July 1986, and 
he was DFR 2 August 1986 (rather than 1985 as noted above).  Other important 
documentation to include DA 2496 and Charge Sheet DD 458 (latter dated 24 October 
1986) also indicate AWOL period beginning 8 July 1986 rather than 1985. Taken as a 
whole, the dates and data are inconsistent, but the overall record could be interpreted to 
suggest that applicant failed to report for his initial training (eg, evidence that his report 
date to initial training was same date as AWOL, 850708).  If this is the case, it is unclear 
where or how he may have been subject to harassment in training by drill sergeants and 
others. It is also unclear why certain documentation has 1985 as relevant dates of 
AWOL and other documents show 1986.

Applicant has provided no other medical or psychiatric records to review in support of 
his application.

    d.  AHLTA

The Army electronic medical record, AHLTA, was not reviewed; it was not an existing 
EMR at the applicant’s time of service.

    e.  JLV

Available VA records were reviewed via JLV.  Records indicate applicant has no 
service-connected conditions.  The record is void of relevant clinical data.

    f.  Other

Query of HAIMS did not return any documents for this applicant.

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, other conditions 
including bipolar disorder, and harassment as associated with circumstances of his 
discharge.  He also noted DADT on his application, but there is otherwise no 
reference and it is of unclear relevance.

2.	Did the condition exist or experience occur during military service? Yes, per the 
applicant’s assertion only.

3.	Does the condition or experience actually excuse or mitigate the discharge? Unable 
to fully opine on relevant aspects of his claim.  The applicant has asserted PTSD, 
other mental health conditions, and harassment associated with the circumstances 
of his discharge, and his assertion alone is worthy of consideration by the Board.  In 
terms of a medical advisory, there is no evidence of records supporting PTSD or 
another mental health condition such as bipolar disorder at the time of, or 
subsequent to, his service. Such conditions could potentially mitigate circumstances 
of separation (specifically AWOL, which appears to be the proximate cause of 
discharge although ROP refers to additional charges), but again the advisor finds no 
compelling evidence supporting presence of such conditions. His assertion of 
harassment in training is complicated by inconsistent records, especially given that 
such records raise doubt whether he ever reported for his initial training prior to 
going into AWOL status.  The lack of clarity regarding dates and whether he 
reported for training has obvious implications regarding claims of harassment.  The 
advisor is ultimately unable to render an opinion on potential nexus between claimed 
harassment and the circumstances of discharge.

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 her characterization of service.  Upon review of 
the applicant’s petition, available military records and medical review, the Board 
concurred with the medical opinion finding there is no evidence of records supporting 
PTSD or another mental health condition such as bipolar disorder at the time of, or 
subsequent to, his service.  The Board found insufficient evidence of error, injustice, or 
inequity; the applicant had limited creditable service, no wartime service and insufficient 
evidence of mitigating circumstances for the misconduct. Neither did the Board find 
sufficient evidence of post-service achievement or character letters to show honorable 
conduct that might have mitigated the misconduct that resulted in the discharge 
characterization. Based on a preponderance of evidence, the Board determined that the 
character of service the applicant received upon separation was not in error or unjust. 
Therefore, relief was denied.

?
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 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.


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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets 
forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 
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.

	a.  Paragraph 3-7a states 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 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.  

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 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.
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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220003852


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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