IN THE CASE OF: 

		BOARD DATE: 15 December 2022

		DOCKET NUMBER: AR20220005456


APPLICANT REQUESTS: upgrade of his general, under honorable conditions 
discharge to honorable and a personal appearance before the board.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	VA Form 21-686c (Declaration of Status of Dependents)
*	Compensation/Pension Claim Information
*	Department of Veterans Affairs Certificate of Eligibility for Loan Guaranty
*	Certified Copy of Marriage 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 just recently became a 100% permanent, and he would like 
to get an IF card for commissary benefits for himself and his spouse. His discharge is 
directly related to his service-connected disability. He feels he should have not been put 
out of the military for any reason. He was in counseling in the military. He feels this 
correction should be made because his spouse is being denied things that should be 
her benefit and he has a 4-year-old son. He doesn’t want him to be denied something 
one day because his discharge doesn’t say honorable. He helps veterans daily. He has 
worked with homeless veterans for the last 13 years. He would like to be able to say 
proudly he is an honorably discharged veteran. He works for the Department of 
Veterans Affairs today. He is a licensed counselor. He helps veterans do the same thing 
he is trying to do. He is at 100% and his wife is being denied her entitlements. Other 
Mental Health issues/conditions are related to his request.

3.  Having had prior enlisted service in the U.S. Army Reserve (USAR), the applicant 
entered active duty on 1 September 1987. He was released from active duty on 22 
January 1988 and transferred to back to the USAR. His DD Form 214 (Certificate of 
Release or Discharge from active Duty) shows he completed 4 months and 22 days of 
active service. It also shows he was awarded or authorized: Army Service Ribbon, 
Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Sharpshooter 
Marksmanship Qualification Hand Grenade Badge.

4.  The applicant enlisted in the Regular Army on 6 June 1988 for four years. His 
military occupational specialty was 94B (Food Service Specialist).

5.  The applicant accepted non-judicial punishment (NJP) under the provisions of Article 
15 of the Uniform Code of Military Justice (UCMJ), at Fort Campbell, KY, on 
28 November 1988 for wrongful use of cocaine on or about 9 August 1988 to on or 
about 9 September 1988. His punishment consisted of reduction to the grade of 
private/E-2 and forfeiture of $376.00 pay per month for two months (suspended).

6.  The applicant received performance counseling on 1 February 1989 and 1 March 
1989. His professional competence was good. His professional standards needed work.

7.  The applicant was counseled on 18 April 1989 and 20 April 1989 for being late for 
duty and on 25 April 1989 for conflict in his marriage with physical abuse. He failed to 
report for duty on 25 August 1989.

8.  The applicant’s check cashing privileges were suspended on 22 September 1989; 
this was the third offense.

9.  A letter, dated 10 October 1989, from the Mandatory Domestic Conflict Containment 
Program (DCCP), shows Soldiers would be required to enter the DCCP when spouse 
abuse has been substantiated by the Family Advocacy Case Management Team.

10.  The applicant’s duty status was changed from present for duty to confined by civil 
authorities on 5 December 1989.

11.  The applicant referred himself to Alcohol and Drug Abuse Prevention Control 
Program Client Progress (ADAPCP) on 18 December 1989. The reason for the referral 
was that he had physical signs; improper use of alcohol and problems with finances and 
his marriage/family. The commander’s recommendation was that the applicant needed 
alcohol and/or drug education and he suspected the applicant had an alcohol and/or 
other drug problem and needed evaluation. 

12.  The applicant was enrolled in the Domestic Conflict Containment Program (DCCP) 
on 22 January 1990 following an incident of domestic violence.

13.  The applicant successfully completed DCCP Group Therapy on 2 April 1990.
14.  A letter, dated 20 April 1990, from A and M Enterprises to his first sergeant, shows 
the applicant had been sent past due account correspondence regarding no satisfactory 
arrangements for the orderly liquidation of his account. His account was past due for 
eight installments, and a total of $521.81.

15.  The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on 17 
May 1990 for failing to report for duty. His punishment consisted of restriction 
(suspended) and extra duty.

16.  He was counseled on:

*	22 May 1990 for failing to report for scheduled training
*	9 June 1990 for being arrested and charged with assault, his wife filed the 
complaint, he was taken to the jail
*	30 July 1990 for failing to report for duty

17.  The Repeated Domestic Violence letter, dated 3 August 1990, shows applicant was 
involved in a third incident of domestic violence.

18.  The applicant’s first sergeant recommended initiation of Chapter 14-misconduct, 
under the provisions of Army Regulation (AR) 635-200 (Personnel Separations- Enlisted 
Personnel), on 16 August 1990, due to the applicant’s performance. 

19. A DA Form 3822-R (Report of Mental Status Evaluation) dated 20 August 1990 
shows the applicant met the medical retention requirements of Chapter 3, Army 
Regulation (AR) 40-501 (Standards of Medical Fitness). He had the mental capacity to 
understand and participate in the proceedings and he was mentally responsible. He was 
psychiatrically cleared for any administrative action deemed appropriate by command. 
He underwent a chapter physical examination on 21 August 1990.

20.  The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on 4 
September 1990 for without authority, failing to go at the time prescribed to his 
appointed place of duty; willfully breaking a window on or about 18 August 1990 and 
failing to obey a lawful order on or about 23 August 1990. His punishment consisted of 
reduction to private/E-2, restriction, and Oral Reprimand by the battalion commander: to 
be separated by Chapter 14, AR 635-200. He was counseled on 12 September 1990 for 
failure to repair.

21.  The applicant's immediate commander notified him of his intent to initiate 
separation actions against him on 17 September 1990, under the provisions of AR 635-
200, paragraph 14, for minor disciplinary infractions, a pattern of misconduct and a 
commission of a serious offense (aggravated criminal trespass). The commander noted 
the following reasons for the proposed action was that he was a three-time failure on 
the Family Advocacy Program; failure to repair on numerous occasions; he had 
problems writing bad checks and failure with the ADAPCP and letters of indebtedness. 
The commander recommended an under honorable conditions, general discharge and 
notified the applicant of his rights. The applicant acknowledged notification on the same 
date.  

22.  The applicant consulted with counsel on 19 September 1990. He was advised of 
the basis for the contemplated action to separate him and of the rights available to him. 
The applicant and his counsel refused to sign the rights election form because 
consulting counsel told the applicant that he did not believe his immediate commander 
had the authority to initiate the elimination action. 

23.  The applicant's commander formally recommended the applicant's separation, 
under the provisions of AR 635-200, paragraph 14-12b. In accordance with paragraph 
2-2g, AR 635-200, the applicant’s commander determined that the applicant’s refusal to 
sign the rights election form indicating his election of rights constitutes waiver of those 
rights. The applicant’s chain of command recommended approval. 

24.  The separation approval authority approved the discharge under the provisions of 
Chapter 14-12c, AR 635-200 and directed the issuance of a general, under honorable 
conditions discharge.

25.  The applicant was discharged on 2 October 1990. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he was discharged under the provisions 
of AR 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious 
offense (Separation Code JKQ, Reentry Code 3). His characterization of service was 
under honorable conditions, general. He completed 2 years, 4 months, and 9 days of 
active service. He had lost time from 5 December 1989 to 12 December 1989. 

26.  The applicant provides:

     a.  A Certified Copy of his marriage record with a date of marriage on .

	b.  DVA Declaration of status of Dependents that shows married with one child. A 
DVA Compensation and Pension form with a date of claim of 10 December 2021 and a 
DVA certificate of Eligibility for Loan Guaranty Benefits shows the applicant is eligible 
for home loan benefits.

27.  Clemency guidance to the Boards for Correction of Military/Navy Records 
(BCM/NR) does not mandate relief, but rather provides standards and principles to 
guide Boards in application of their equitable relief authority to ensure each case will be 
assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby 
a service member under the same circumstances today would reasonably be expected 
to receive a more favorable outcome.

28.  Published guidance to the BCM/NRs clearly indicates that the guidance is not 
intended to interfere or impede on the Board's statutory independence. The Board will 
determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. In reaching its determination, the Board shall consider the 
applicant's petition, available records and/or submitted documents in support of the 
petition.

29.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an upgrade of his general, 
under honorable conditions discharge characterization of service to honorable.  The 
applicant contends his misconduct was associated with Major Depressive Disorder.  

    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 into the Regular Army on 6 June 1988; 2) He accepted NJP under 
provisions of the UCMJ, Article 15, on 28 November 1988 for wrongful use of cocaine; 
on 17 May 1990 for failing to report for duty; and on 4 September 1990 for without 
authority, failing to go at the time prescribed to his appointed place of duty, willfully 
breaking a window on or about 18 August 1990, and failing to obey a lawful order on or 
about 23 August 1990; 3) A Repeated Domestic Violence letter dated 3 August 1990 
showed the applicant engaged in three incidents of domestic violence; 4) He was 
separated on 2 October 1990 under provisions of AR 635 – 200, Chapter 14-12c, 
serious misconduct.  

    c.  Military medical records reviewed included 1) DA Form 3822-R (Report of Mental 
Status Evaluation) dated 20 August 1990, which showed the applicant met medical 
retention standards IAW AR 40-501 (Standards of Medical Fitness), had the mental 
capacity to understand and participate in proceedings, and was  psychiatrically cleared 
for any administrative action deemed appropriate by command; 2) Standard Form 88 
(Report of Medical Examination), dated 21 August 1990, that showed the applicant was 
medically cleared for administrative separation. The electronic military medical record 
(AHLTA) was not reviewed as the system was not in use during the applicant’s period of 
service.  A review of the VA electronic medical record (JLV) showed the applicant is 100 
percent service-connected (SC) for Major Depressive Disorder, with an original effective 
date of 20 March 2018 and current effective date of 12 October 2021.  The VA C&P 
Examinations detailing the experiences that informed the service-connected 
determination were not available at the time of this writing.  

    d.  The applicant appears to have first engaged the VA for BH-related treatment at 
the Cleveland, OH VA on 10 January 2007.  The applicant presented for psychiatric 
intake complaining of stress, anger, depression, and frustration, secondary to workplace 
frustrations, and the 1-year anniversary of his nephew’s death.  He reported a history of 
depression since 1996 subsequent the loss of his father.  He also reported a history of 
cocaine abuse. He was diagnosed with MDD, Cocaine Dependence, and Cocaine 
Induced Psychosis, and scheduled for outpatient treatment via talk therapy and 
medication management.  He received treatment from January 2007 to August 2007 
before discontinuing.  Records suggest the applicant reengaged in treatment on or 
about 27 March 2018, and presented with depressed mood, irritability, anxiety, 
decreased appetite, and fatigue.  He reported symptoms being persistent for the past 
couple of year but increased in intensity recently secondary to marital issues.  He was 
diagnosed with MDD, Anxiety unspecified, and Problems in Relationship with Spouse.  
He was scheduled for outpatient treatment via talk therapy and medication 
management.  He engaged in outpatient treatment from March 2018 to current. 

    e.  Based on the available information, it is the opinion of the Army Review Boards 
Agency (ARBA) BH Advisor that the applicant had a condition or experience that 
partially mitigated his misconduct. 

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 has a 100 SC of 
MDD.  

2.	Did the condition exist or experience occur during military service? Yes. The 
VA deemed it SC, and although this advisor cannot access the C&P 
Examinations detailing the event(s) that resulted with the SC determination, it 
is assumed the condition existed or occurred during the applicant’s military 
service.   

3.	Does the condition or experience actually excuse or mitigate the discharge? 
Partial.  As there is a clear association between MDD and self-medicating of 
symptoms, there is a nexus between the applicant’s diagnosis and cocaine 
and alcohol misuse, thus the misconduct is mitigated.  Also, as there is an 
association with MDD and withdrawal, isolation, memory, and sleep, there is 
a nexus between the applicant’s instances of failure to repair, thus MDD was 
a mitigating factor in his FTR.  As it relates to instances of assault (domestic 
violence), aggravated criminal trespassing and vandalism, the instances of 
misconduct are not natural sequela of MDD and are not mitigated.  Lastly, 
while fraudulent check writing, and subsequent dept, can be sequela of 
bipolar disorder (aka, manic depressive disorder), the applicant’s diagnostic 
history shows MDD and does not appear to suggest bipolar disorder, thus the 
misconduct of fraudulent check writing is not mitigated. 

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 
mental health claim and the review and conclusions of the ARBA Behavioral Health 
Advisor. The applicant provided insufficient 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 his misconduct being only partially mitigated by a 
mental health condition.  Based on a preponderance of 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

: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. 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.  Chapter 14 established policy and prescribed procedures for separating members 
for misconduct. Specific categories included minor disciplinary infractions, a pattern of 
misconduct, commission of a serious offense, conviction by civil authorities, desertion, 
or absences without leave. Action would be taken to separate a member for misconduct 
when it was clearly established that rehabilitation was impracticable or was unlikely to 
succeed. A discharge under other than honorable conditions was normally considered 
appropriate. However, the separation authority could direct a general discharge if such 
was merited by the Soldier's overall record.

3.  Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an 
applicant seeking corrective action by the Army Review Boards Agency 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.

4.  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 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 by a preponderance of the evidence.  It is not an investigative body.  
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.
5.  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 [Hagel Memorandum], 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 (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.

6.  The Under Secretary of Defense (Personnel and Readiness) provided clarifying 
guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta 
Memorandum]. 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 sexual assault or sexual harassment was unreported, or 
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. 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.

     a.  Guidance documents are not limited to UOTHC discharge characterizations but 
rather apply to any petition seeking discharge relief including requests to change the 
narrative reason, re-enlistment codes, and upgrades from general to honorable 
characterizations.

     b.  An honorable discharge characterization does not require flawless military 
service. Many veterans are separated with an honorable characterization despite some 
relatively minor or infrequent misconduct.

     c.  Liberal consideration does not mandate an upgrade. Relief may be appropriate, 
however, for minor misconduct commonly associated with mental health conditions, 
including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual 
harassment; and some significant misconduct sufficiently justified or outweighed by the 
facts and circumstances.

7.  The Under Secretary of Defense (Personnel and Readiness) issued guidance to 
Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a 
sentencing in a court-martial; it also applies to any other corrections, including changes 
in a discharge, which may be warranted on equity or relief from injustice grounds.  

     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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220005456


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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