IN THE CASE OF:  

		BOARD DATE:  21 February 2023

		DOCKET NUMBER:  AR20220007307


APPLICANT REQUESTS:  An upgrade of his under other than honorable conditions 
(UOTHC) discharge to an honorable discharge. 

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

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for Review of Discharge), with two self-authored 
statements
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 13 July 1981
*	Department of Corrections Health Services, Lab Results Review, dated 
16 October 2015
*	National Personnel Records Center (NPRC), response, dated 18 October 2019
*	Gilbert's Syndrome information sheets and applicant's handwritten statement of 
symptoms
*	U.S. District Court Case Filing, dated 30 December 2021
*	Veterans Service Officer, letter, undated
*	Department of the Navy, rejection letter, dated 20 March 2022

FACTS:  

1.  The applicant did not file within the three-year time frame provided in Title 10, U.S. 
Code (USC), 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: 

   a.  When he was assigned to the U. S. Army Retraining Brigade (USARB), Fort 
Riley, KS, his commander Captain (CPT) placed him in charge of his barracks to keep it 
clean and keep other Soldiers orderly. He received top ratings for physical training and 
obstacle courses. One day, a few miles into a 25-mile run, a Soldier fell out with heat 
stroke, the applicant voluntarily ran back to base to get help since they had no 
communications. Once he arrived and found CPT they sent help and ultimately saved 
the Soldier. CPT told the applicant if he had the power, he would have recommended 
him for a Medal of Honor for his actions with saving the Soldier.

   b.  He had Gilbert's Syndrome and reflects on how the symptoms impacted his life. 
He explains the syndrome can create stress, anxiety, sleep deprivation, mental 
confusion, and the inability to formulate thoughts, but can also intensify these same 
symptoms as well. His father sexually abused him, sold him to other men, and 
attempted to shot him in the back of the head when he was 10 years old, at his mother's 
request. Thankfully, after the bullet whizzed past his head his father never took a 
second shot.

   c.  He joined the Army to get away from home and gain courage. He is certain the 
stress and sleep deprivation from service intensified the symptoms of his syndrome. He 
was a good Soldier and did well when he was rested and calm. He provides examples 
of several incidents when he made poor choices due to his inability to think, such as 
writing a bad check, leaving a field training exercise, and taking the blame for a stolen 
stereo, that he did not steal. He also alleges he never received his $3,000 enlistment 
bonus listed on his DD Form 214. Sergeant (SGT) gave him $1,500 and told him he 
would get the rest after he finished advance individual training (AIT), but he never 
received it, even after requesting it from SGT.

   d.  His whole life has been impacted by this syndrome that he did not know he had, 
until he identified a brain fog to a nurse in 2013-2014 and was diagnosed. He is 
currently sitting in prison for a crime he did not commit, he admitted guilt to something 
he did not do because of his inability to think clearly. He is appealing his sentence as 
shown in his attached document. He is requesting an upgrade because he wants to be 
known as a person of honor, he has learned to cope with the disorder that caused him 
to not make normal decisions. 

3.  The applicant’s record shows the following:  

   a.  On 27 August 1980, the applicant enlisted in the Regular Army, for a 4-year 
service obligation. Upon completion of basic training at Fort Jackson, SC, he was 
assigned to Fort Hood, TX to complete AIT in the military occupational specialty 11B 
(Infantryman).

   b.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows, he was 
permanently assigned to Fort Hood, TX on 10 December 1980, as his first permanent 
duty station and was paid an enlistment bonus on the same date.

   c.  On 27 April 1981, before a summary court-martial (SCM), at Fort Hood, TX, the 
applicant was found guilty of one specification of leaving his appointed place of duty 
without authority [training area], and one specification of wrongfully stealing a stereo of 
a value of about $600.00, on or about 23 April 1981. His sentenced included reduction 
to the grade of E-1 and 30 days confinement at hard labor. The sentence was approved 
and ordered executed the same day. 

   d.  On an uncertain date the applicant was transferred to the USARB, Fort Riley, KS. 
However, his counseling resume shows he was being processed in by a social worker 
on 6 May 1981. 

   e.  On 10 June 1981, the applicant accepted non-judicial punishment (NJP) under 
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for two 
specifications of willfully disobeying a lawful order from his superior noncommissioned 
officers (NCO) on or about 7 June 1981 and on or about 8 June 1981. His punishment 
included 14 days restriction and 14 days extra duty. 

   f.  On 20 June 1981, his Team Commander, CPT counseled the applicant for his 
elimination under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), Chapter 14, for frequent acts of misconduct. The 
commander noted the applicant was not responsive to counseling and his attituded 
towards retraining was terrible. 

   g.  On 23 June 1981, the applicant accepted NJP under the provisions of Article 15 
of the UCMJ, for willfully disobeying a lawful order from his superior noncommissioned 
officer (NCO) on or about 18 June 1981, and willfully disobeying his superior 
commissioned officer on or about 19 June 1981. His punishment included 14 days 
restriction and 14 days extra duty. 

   h.  On 24 June 1981, the applicant's Battalion Commander formerly recommended 
his separation under the provisions of AR 635-200, Chapter 14, due to frequent 
incidents of a discreditable nature. He noted a discharge for unsuitability was not 
appropriate because the applicant's behavior was not due to an inability to satisfactorily 
perform within the meaning of unsuitability. He was sent to the USARB to receive 
correctional training and treatment to return him to duty, but his actions showed he had 
little desire to return to duty. The commander also included a resume listing a history of 
the applicant's attitude, conduct, performance, and discreditable acts.

   i.  On 25 June 1981, the applicant acknowledged the commander’s notification. He 
was advised of the basis for the contemplated actions to separate him and of the rights 
available to him. He acknowledged his understanding and elected not to submit a 
statement in his own behalf. 

   j.  Subsequently, his chain of command recommended approval of his separation 
and waiver of further rehabilitative efforts. On 9 July 1981, the separation authority 
approved the recommended discharge and directed the applicant be issued an UOTHC 
Discharge Certificate.

   k.  On 13 July 1981, the applicant elected to waive a separation examination. 
However, he underwent a mental status evaluation. The DA Form 3822-R (Report of 
Mental Status Evaluation) shows he had no significant mental illness, had the mental 
capacity to understand and participate in board proceedings, and met retention 
standards. 

   l.  On 13 July 1981, the applicant was discharged accordingly. His DD Form 214 
confirms he was separated under the provisions of AR 635-200, Chapter 14, due to 
frequent involvement in incidents of a discreditable nature with civil or military 
authorities with a under other than honorable conditions characterization of service 
(Separation Code JKA, Reentry Code 3B). He was credited with completing 9 months 
and 23 days of net active service this period and he had lost time from 27 April to 20 
May 1981.

4.  The applicant provides the aforementioned documents (provided in entirety) and 
information sheets on Gilbert's Syndrome, as well as a self-authored statement detailing 
his issues.

5.  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. 

6.  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. 

7.  MEDICAL REVIEW:  

    a.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents, the Record of Proceedings (ROP), and the applicant's available records in 
the Interactive Personnel Electronic Records Management System (iPERMS), the 
Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts 
Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV).  The 
applicant requests for a discharge upgrade from Under Other Than Honorable 
Conditions to Honorable.  He believes that his Gilbert Syndrome (diagnosed in 2014) 
caused mental changes that influenced his actions which led to his discharge.

    b.  The complete facts and circumstances surrounding the applicant’s discharge from 
service are unknown; however, the available military record was summarized in the 
ROP.  Of note, the applicant began active service in the Army 27Aug1980.  His primary 
MOS was 11B10, Infantryman.  He did not deploy.  He was discharged 13Jul1981 
under provisions of AR 635-200 para 14-33b(1) for frequent involvement in incidents of 
a discreditable nature with civil or military authorities.  The 27Apr1981 Summary Court-
Martial Order indicated that the applicant was found guilty of leaving the appointed 
place of duty without authority, as well as larceny.  There were multiple incidents listed 
in the record to include not obeying lawful orders and others.

    c.  13Jul1981 Report of Mental Status Evaluation.  The psychiatric examination 
showed no abnormalities with behavior, level of alertness, level of orientation, mood, 
thinking process, thought content, or memory. No significant mental illness was found.  
He was deemed to be mentally responsible; he could distinguish right from wrong; and 
he was able to adhere to the right. He had the mental capacity to understand and 
participate in administrative proceedings. He met retention standards of AR 40-501 
chapter 3. 

     d.  In his April 2022 application to ABCMR, the applicant described having anxiety, 
sleep deprivation, and problems socializing and focusing while in school.  He also 
stated that he was placed in a special learning class.  He attributed these difficulties to 
his Gilbert’s Syndrome which was ultimately diagnosed in 2014.  The applicant also 
divulged the following:  He was sexually abused by his father for about 10 years; his 
father prostituted him to other men; and at age 10 while acting under orders from his 
mother, his father almost executed him.  He endorsed that the actions of his parent’s 
created fear in him and an inability to trust.  In essence, he contends that these 
circumstances contributed to his misconduct while in the military.  

    e.  Review of JLV revealed records showed that the applicant has not been seen at 
VA facilities or rated by the VA for disabilities.  The 16Oct2015 Department of 
Corrections Health Services Lab results were consistent with Gilbert Syndrome— mildly 
elevated bilirubin, and normal liver function tests.  Although it is a genetic condition, the 
condition may not become apparent until puberty or sometimes not until early 
adulthood.  While most individuals with Gilbert Syndrome have normal physical 
examination and have no symptoms except possibly intermittent jaundice (yellow eyes 
or skin); it would be expected that those individuals with clinically significant symptoms 
would tend to have higher bilirubin levels—if higher bilirubin levels were present, 
jaundiced skin and or eyes would also be expected.  In his statement accompanying the 
application, it was noted that he denied “turning yellow”.  Therefore, there was no 
compelling medical evidence that the condition was manifested while he was in service.  
13Jul1981, the applicant elected NOT to have a separation physical.  

    f.  Review of available records did not find a diagnosis of PTSD, TBI or MST or other 
BH diagnoses.  However, the applicant described a childhood background filled with 
sexual and emotional trauma that would meet criteria A category for PTSD or serve as 
the basis for Other Specified Trauma diagnosis.  The applicant’s military record 
contained multiple instances of disrespect for authority.  The 03Sep2014 Secretary of 
Defense Liberal Guidance Memorandum and the 25Aug2017 Clarifying Guidance, were 
reviewed.  In accordance with liberal consideration guidance, the Soldier’s testimony 
alone can establish the existence of a condition or experience.  The applicant’s 
testimony of pre-military traumatic experience is accepted; however, there was no 
evidence to support that there was worsening due to his military service.  In view of the 
applicant’s life-time traumatic experience prior to entry into the military and its inevitable 
impact on his subsequent life choices, the Board in its discretion, may consider a 
discharge upgrade to General, Under Honorable Conditions or Honorable to allow the 
possibility of treatment based on compassion.

Kurta Questions

		(1)  Did the applicant have a condition or experience that may excuse or mitigate 
the discharge?  Yes.  In his own words, the applicant convincingly described premilitary 
experiences that “created a sense of fear” and “an inability to trust”.  These experiences 
likely influenced his view of authority figures and resulted in many of the offences listed 
in his record.

		(2)  Did the condition exist, or did the experience occur during military service?  
No.  The traumatic experiences occurred prior to military service and there was no 
evidence of worsening as a result of military service.

		(3)  Does the condition or experience actually excuse or mitigate the discharge? 
No.  None of the offences are mitigated.  Liberal consideration does not apply because 
there was no worsening as a result of his military service.

BOARD DISCUSSION:  

The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, and published DoD guidance for liberal consideration of 
discharge upgrade requests. The Board considered the applicant's statement, the 
applicant's record of service, the frequency and nature of the applicant's misconduct 
and the reason for separation. 

	a.  The applicant was discharged from active duty on 13 July 1981, under AR 635-
200, Chapter 14, due to frequent involvement in incidents of a discreditable nature with 
civil or military authorities with a under other than honorable conditions characterization 
of service (Separation Code JKA, Reentry Code 3B). He completed 9 months and 23 
days of active service this period and he had lost time from 27 April to 20 May 1981. 
The Board considered the medical records, any VA documents provided by the 
applicant and the review and conclusions of the advising official. The Board concurred 
with the medical advisory opinion finding insufficient evidence of in-service mitigating 
factors to overcome the misconduct.

	b.   The applicant provided no evidence of post-service achievements or letters of 
reference in support of a clemency determination. 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.
?
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, USC, 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.  Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an 
applicant seeking corrective action by ARBA 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.

3.  Army Regulation 635-200 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.  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 14 establishes policy and prescribes procedures for separating members 
for misconduct. Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of frequent incidents of discreditable nature with civil or military 
authorities), 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. 

4.  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 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. 

5.  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; 
Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are 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 misconduct that led to 
the discharge. 

6.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military DRBs and 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. 

   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, 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. 

   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)	AR20220007307


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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