IN THE CASE OF 

		BOARD DATE: 1 March 2023

		DOCKET NUMBER: AR20220004873


APPLICANT REQUESTS: reconsideration of his previous request to change his 
character of service from under other than honorable conditions to honorable and a 
personal appearance.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record), 22 May 2022

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 AR20180013429 on 20 June 2019.

2.  The applicant states he was under a lot of stress due to leaving Germany and going 
to Fort Lee, VA. He has post-traumatic stress disorder (PTSD). The Army’s legal 
department denied the discharge that was recommended. Even though, he went to his 
commander and pushed the issue to get out, he was young and unaware that he would 
not be able to receive Veteran Affair benefits. 

3.  On 20 June 1978 the applicant enlisted in the Regular Army. He was awarded the 
military occupational specialty 71L (Administrative Specialist).

4.  On 25 October 1978, the applicant was assigned to Headquarters and Headquarters 
Company, Division Support Command, 1st Armored Division Support Command, in 
Germany.

5.  On 3 July 1980, he accepted nonjudicial punishment (NJP) under Article 15, Uniform 
Code of Military Justice (UCMJ), for being absent from his appointed place of duty, on 
or about 3 July 1980. His punishment consisted of reduction to private first class/(PFC) 
and seven days confinement to Monteith Confinement Facility.

6.  On 5 April 1981, he was discharged for immediate reenlistment, and reenlisted on 
6 April 1981. 

7.  On 13 October 1981, he accepted NJP under Article 15, for using disrespectful 
language to a superior noncommissioned officer on or about 4 October 1981. His 
punishment consisted of reduction to private first (PFC)/E-3, suspended for 90 days, 
forfeiture of $177.00 for one month, 14 days restriction, and 14 days extra duty.

8.  On 8 January 1982, the punishment of reduction in rank/grade imposed on 
13 October 1981 against [applicant] to be automatically remitted if not vacated before 
10 January 1982, was vacated. The unexecuted portion of the punishment would be 
duly executed.

9.  On 7 May 1982, he was assigned to Headquarters and Headquarters Company, 
4th Battalion U.S. Army Quarter Master Battalion, at Fort Lee, VA.

10.  On 10 December 1982, a DA Form 4126 (Bar to Reenlistment Certificate) was 
initiated due to applicant’s unsuitability and continuous indebtedness. The chain of 
command approved the bar to reenlistment on 15 December 1982.

11.  On 18 January 1983, the applicant accepted NJP under Article 15, for failing to 
obey Company visiting hours on 15 January 1983. His punishment consisted of 
forfeiture of $100.00 pay, and 14 days extra duty.

12.  On 14 March 1983, he accepted NJP under Article 15, for failing to be on time at 
his appointed place of duty on or about 10 March 1983. His punishment consisted of 
forfeiture of $150.00 pay, suspended for 120 days, and 14 days extra duty.

13.  On 11 April 1983, he accepted NJP under Article 15, for assault on Miss by striking 
her with his fists and umbrella, on or about 7 April 1983. His punishment consisted of 
reduction to private/E-1, 30 days extra duty, and 30 days restriction.

14.  On 14 April 1983, the applicant's immediate commander notified the applicant of his 
intent to initiate separation action against him under the provisions of Army Regulation 
(AR) 635-200 (Personnel Separations), Chapter 14 (Separation for Misconduct) 
paragraph 14-12b (Patterns of Misconduct) based on his continuous violation of the 
UCMJ. The specific reason(s) for the proposed separation action is/are: 

*	Company Grade Article 15 on 3 July 1980 for being absent from your place of 
duty
*	Company Grade Article 15 on 13 Oct 81 for being disrespectful to an NCO 
Company Grade Article 15 on 18 Jan 83 for disobeying a lawful order
*	Company Grade Article 15 for being derelict in your duties on 14 Mar 83
*	Field Grade Article 15 for Assault

This proposed separation action could result in his discharge from the United States 
Army. The least favorable characterization of service or description of separation he 
could receive is a Discharge, Under Other Than Honorable Conditions.  The 
commander advised the applicant of his rights.

15.  On 15 April 1983, the applicant acknowledged receipt of his commander's intent to 
initiate separation action against him for patterns of misconduct. He consulted with 
counsel who advised him of the basis for the contemplated action to separate him under 
AR 635-200, Chapter 14-12b, and its effect; of the rights available to him; and the effect 
of any action taken by him in waiving him rights. He acknowledged: 

*	he understood the effect of any waiver of rights; of the least favorable discharge 
he may receive as a result of the action; and the effect of each type of 
discharge/characterization of service
*	he understood that he may expect to encounter substantial prejudice in civilian 
life if a general discharge under honorable conditions is issued to him
*	he understood that, as the result of issuance of a discharge certificate/character 
of service which is less than honorable, he may make application to the Army 
Discharge Review Board or the Army Board for Correction of Military Records for 
upgrading; however, he realizes that consideration by either board does not 
automatically imply upgrading
*	he understood that he may until the date of the separation authority orders 
directs or approved him separation withdraw the waiver of any of the above right 
and request that an administration board if authorized hear his case

16.  Subsequent to the applicant's acknowledgement, the immediate commander 
formally initiated separation action against the applicant under chapter 14-12b of 
AR 635-200 for a pattern of misconduct. He recommended a general discharge. 

	a.  The applicant arrived at Fort Lee on 7 May 1982, with two (2) Company Grade 
Article 151s from his previous unit of assignment. Since his arrival, he has had an 
indebtedness problem which resulted in him being Barred from Reenlistment in 
December 1982.

	b.  After he was barred, he received two (2) Company Grade Article 15's, with one 
(1) vacation of suspension forfeiture, and a Field Grade Article 15. He has not 
undergone trial by court-martial but he does have a pattern of Article 15's. 

	c.  He was never formally counseled by his duty section due to his job performance 
being at an acceptable standard. Outside his duty environment, he has been a 
disciplinary problem.  He was verbally counseled at the conclusion of informing him 
about the Bar to Reenlistment being initiated, and formally counseled at the conclusion 
of his second Company Grade Article 15, and upon his violation of Article 128, UCMJ.
He was advised as to the long term effects these disciplinary actions could have on him, 
and what he needed to do to overcome these obstacles. As is evident by his Field 
Grade Article 15, this Soldier failed to take the advice given, which resulted in a serious 
offense. He has also been counseled, informing him of the initiation of a Chapter 14 on 
him.

	d.  To allow him to remain in the military service could result in a more serious 
violation of the UCMJ that would possibly be uncorrectable. In accordance with AR  
635-200, para 1-18 and 14-2, request a rehabilitative waiver by approved since 
corrective attempts appear useless.

17.  On 21 April 1983, the battalion commander strongly recommended approval. He 
stated the applicant is not the caliber of soldier needed in today's Army. In less than five 
(5) years-service, he has been reduced in grade on three (3) separate occasions. 
Further, he was barred from reenlistment on 15 December 1982 for reasons of 
indebtedness.

18.  On 19 May 1983, following a legal review for legal sufficiency, the separation 
authority approved the recommendation for separation under the provisions of 
chapter 14 of AR 635-200, separation for misconduct, patterns of misconduct and 
ordered his service be characterized as under other than honorable conditions.

19.  The applicant was discharged from active duty on 3 June 1983 under the provisions 
of AR 635-200, Chapter 14-12b with a Under Other Than Honorable Conditions 
characterization of service (Separation Code JKM and Reentry Code 3). His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

	a.  He completed 2 years, 1 month, and 28 days of net active service this period and 
contains the following entries and information: Immediate Reenlistment 780620-810405.

	b.  He was awarded or authorized the: Army Service Ribbon, Overseas Service 
Ribbon, and Army Good Conduct Medal.

20.  On 3 October 1984, the Army Discharge Review Board denied his request for an 
upgrade of his discharge. 

21.  On 20 June 2019, in ABCMR Docket Number AR20180013429, the Board denied 
his request for an upgrade of his discharge. After review of the application and all 
evidence, the Board determined there is insufficient evidence to grant relief. The 
applicant's contentions were carefully considered. The Board applied Department of 
Defense standards of liberal consideration to the complete evidentiary record and did 
not find any evidence of error, injustice, or inequity. He did not provide character 
witness statements or evidence of post-service achievements for the Board to consider. 
Based upon the pattern of misconduct and some involving physical violence against 
another, the Board agreed that the applicant's discharge characterization was warranted 
as a result of the misconduct.

22.  By regulation (AR 635-200), separations under the provisions of AR 635-200, 
chapter 14 provides policy and prescribes procedures for separating personnel for 
misconduct because of minor disciplinary infractions, a pattern of misconduct, 
commission of a serious offense, conviction by civil authorities, desertion, and absence 
without leave.

23.  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.

24.  MEDICAL REVIEW:

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:  

    a.  The applicant is again applying to the ABCMR requesting an upgrade of his 3 
June 1983 under other than honorable conditions discharge.  He states: “I was under a 
lot of stress due to leaving Germany to Ft. Lee, VA, PTSD.”

    b.  The Record of Proceedings outlines 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 6 April 1981 and was discharged on 3 June 1983 
under the provisions provided chapter 14 of AR 635-200, Personnel Management – 
Enlisted Personnel (1 October 1982): Separation for Misconduct.  

    c.  This request was previously denied in full by the ABCMR on 20 June 2019 
(AR20180013429).  Rather than repeat their findings here, the board is referred to the 
record of proceedings for that case.  This review will concentrate on the new evidence 
submitted by the applicant.

    d.  No new evidence was submitted with this application.  Because of the period of 
service under consideration, there are no encounters in AHLTA or documents in 
iPERMS.  The applicant is not registered with the VA and there are no records in JLV.

    e.  The previous ROP shows the applicant received Article 15s for Failure to repair, 
use of disrespectful language to a superior noncommissioned officer, violating company 
visiting hours, and assault.  His Bar to Reenlistment Certificate documents eleven non-
payments of just debts.

    f.  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 multiple UCMJ 
violations; 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 his office, grade, rank, 
or rating prior to his discharge.  

    g.  It is the opinion of the ARBA medical advisor that an upgrade of his discharge 
based upon a medical condition is unwarranted.   

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 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 multiple UCMJ violations; or that would have failed the medical 
retention standards. The Board determined there is no evidence that any medical 
condition prevented the applicant from being able to reasonably perform the duties of 
his office, grade, rank, or rating prior to his discharge. The Board agreed there is 
insufficient evidence of in-service mitigation to overcome the misconduct. Based on the 
evidence, the Board determined that the character of service the applicant received 
upon separation was not in error or unjust.  Therefore, relief was denied.

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.

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.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct. Specific categories include minor disciplinary infractions, a pattern of 
misconduct, commission of a serious offense, and convictions by civil authorities. 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 such is 
merited by the Soldier's overall record. Only a general court-martial convening authority 
may approve an honorable discharge or delegate approval authority for an honorable 
discharge under this provision of regulation.

	b.  An honorable discharge is a separation with honor. 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.

	c.  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.

2.  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.

3.  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.

4.  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.

5.  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 begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application. 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.

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)	AR20220004873


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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