IN THE CASE OF: 

		BOARD DATE: 19 January 2023

		DOCKET NUMBER: AR20220006822


APPLICANT REQUESTS: in effect, an upgrade of his characterization of his service to 
honorable.

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

*	DD Form 293 (Application for the Review of Discharge)
*	DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three-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, he was young and immature. He contends that he 
was told the characterization of his service would be automatically changed six months 
after being separated. He contends it took almost 15 years to find a blood clot in his 
subclavian vein and the Department of Veterans Affairs (VA) has assigned a  
100-percent, permanent and total, disability rating for his service-connected conditions. 
An honorable characterization of service would make him eligible to obtain a VA home 
loan.

3.  The record shows the applicant enlisted in the Regular Army on 16 September 1999. 
The highest rank/grade he held was private first class/E-3.

4.  His record of indiscipline/misconduct/nonjudicial punishment (NJP) under the 
provisions of Article 15, Uniform Code of Military Justice (UCMJ) includes:

*	NJP, for the wrongful use of marijuana between on or about 28 March 2000 and 
on or about 27 April 2000; and between on or about 13 January 2001 and 
13 February 2001
*	testing positive for marijuana during a command-directed urinalysis 
on 13 January 2001
*	NJP, for being absent without leave (AWOL) from 15 February 2001 
to 26 February 2001
*	appearing before a Summary Court-Martial on 27 April 2001 where he pled guilty 
and was found guilty of the wrongful possession of marijuana and being a minor 
in consumption

5.  On an unknown date an individual in the applicant's chain of command requested he 
undergo a psychiatric consultation. The reason for referral was cited as his poor 
motivation, use of drugs, and being AWOL.

6.  The applicant's immediate commander notified the applicant on 6 August 2001 that 
he had initiated actions to separate him from service under the provisions of Army 
Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph  
14-12b, patterns of misconduct – wrongful possession and use of illegal drugs, being a 
minor in consumption, and being AWOL. He acknowledged receipt on the same date.

7.  The applicant was advised on 10 August 2001 of the basis for the contemplated 
actions to separate him and of the rights available to him. The applicant requested 
counsel and elected not submit a statement in his own behalf. He acknowledged that he 
could expect to encounter substantial prejudice in civilian life if he received a general 
discharge under honorable conditions. He further understood that if received a 
discharge/character of service which was less than honorable he could make 
application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading: 
however, he realized that an act of consideration by either board did not imply that his 
discharge would be upgraded. 

8.  On 27 August 2001, the applicant's immediate commander formally recommended 
the applicant's separation from service, under the provisions of AR 635-200, Chapter 
14-12b, patterns of misconduct.

9.  The separation authority approved the recommended discharge and directed the 
applicant's service be characterized as under honorable conditions, general.

10.  The applicant was discharged on 29 October 2001. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) confirms he was discharged under the 
provisions of AR 635-200, paragraph 14-12b, by reason of misconduct. He completed 
2 years and 9 days of net active service. His service was characterized as under 
honorable conditions (general).

11.  The applicant's record is void of a separation physical or mental status evaluation, 
and he did not provide documentation of his VA rating.

12.  The Board should consider the applicant's statement and overall military service in 
accordance with the published equity, injustice, or clemency determination guidance.

13.  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 applying to the ABCMR requesting a discharge upgrade.  He 
states:

“It took almost 15 years to find out I have a blood clot in my subclavian vein.  I 
am now permanent and total unemployable, disability 100%, due to my MOS 
{military occupational specialty}.  I need this updated for full VA home loan 
benefits.

I was young and was told back then after 6 months of separation that it would be 
changed.”  

    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The applicant’s DD 214 for the period under consideration 
shows he entered the regular Army on 16 September 1999 and received an under 
honorable conditions (general) discharge on 29 October 2001 under the separation 
authority provided by paragraph 14-12b of AR 635-200, Personnel Separations – 
Enlisted Personnel (1 November 2000): Pattern of Misconduct.  It shows no periods of 
service in an imminent danger pay area.  It also shows the applicant had 35 days lost 
under Title 10 United States Code § 972 (15 – 25 February 2001 and 1 – 24 May 2001).  
His reentry code of “3” signifies he may be eligible to reenlist with a waiver.

    c.  No medical documentation was submitted with the application and there are no 
encounters in AHLTA.

    d.  The applicant received an Article 15 on 5 June 2000 for wrongful use of marijuana 
on two separate occasions.  A second Article 15 received on 23 April 2001 was for a 
period 

    e.  On 6 August 2001, his company commander informed him of the initiation of 
separation action under 14-12b of AR 635-200: 

“The reason for my proposed action is: You wrongfully used marijuana from 
between on or about 26 January 2001 to on or about 26 February 2001, and 
again you wrongfully used marijuana from between on or about 28 March 2000 to 
on or about 27 April 2000.  You wrongfully possessed marijuana on or about 6 
April 2001.  You were a minor in consumption on or about 6 April 2001.  And 
from on or about 16 February 2001 to on or about 26 February 2001 you were 
absent without leave.”

    f.  The brigade commander approved his separation under paragraph 14-12b of AR 
635-200 on 7 September 2001

   g.  Review of the applicant’s records in JLV show he has been diagnosed with PTSD 
and service-connected major depressive disorder.

Kurta Questions:

A.	Did the applicant have a condition or experience that may excuse or mitigate the 
discharge?	
	Yes: PTSD
B.	Did the condition exist or experience occur during military service?
	Yes	
C.	Does the condition or experience actually excuse or mitigate the discharge?
As PTSD is associated with self-medicating with illicit drugs and avoidant 
behaviors, the condition mitigates marijuana use and periods of absence without 
leave.


BOARD DISCUSSION:

The Board carefully considered the applicant's request, 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 claim regarding his health 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, while the Board concurred with the conclusion of the medical advising official 
regarding his misconduct being mitigated by PTSD, the Board found this insufficiently 
mitigating considering the applicant already has an under honorable conditions 
(general) character of service.  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 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 (AR) 635-200 sets forth the basic authority for the separation of 
enlisted personnel. 

	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.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency 
generally refers to relief specifically granted from a criminal sentence. Boards for 
Correction of Military/Naval Records 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.

4.  AR 15-185 (ABCMR), states 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.

5.  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)	AR20220006822


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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