IN THE CASE OF: 

		BOARD DATE: 28 February 2023

		DOCKET NUMBER: AR20220007613


APPLICANT REQUESTS: Reconsideration of his request for upgrade of his under other 
than honorable conditions (UOTHC) discharge to honorable, and a change of the 
narrative reason for separation to "Secretarial Authority."

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

*	DD Form 149 (Application for Correction of Military Record)
*	Attorney Letter and Brief
*	Table of Contents
*	List of Exhibits
*	Exhibit A - Applicant's Affidavit
*	Exhibit B - DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Exhibit C - Army Board for Correction of Military Records (ABCMR) Proceedings, 
Docket Number AR1999021818
*	Exhibit D - Panama Hospital Record
*	Exhibit E - Charge Sheet
*	Exhibit F - Request for Discharge
*	Exhibit G - Veterans Affairs (VA) Medical Records
*	Exhibit H - Primary Care Attending Note
*	Exhibit I - Primary Care Attending Note
*	Exhibit J - Mental Health Medication Meeting Note
*	Exhibit K - Mental Health Diagnostic Study Note
*	Exhibit L - Affidavit of 
*	Exhibit M - Affidavit of 
*	Exhibit N - Affidavit of 
*	Exhibit O - Addiction Supplemental Information
*	Exhibit P - Enlistment Physical 

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the ABCMR in Docket Number 
AR19990021818 on 21 July 1999.
2.  Counsel states:

	a.  The applicant’s discharge should be upgraded to honorable to correct an 
injustice. He survived multiple physical injuries after a serious truck convoy accident 
during overseas service in 1988. The applicant began to suffer from post-traumatic 
stress disorder (PTSD) and related symptoms. His untreated mental health conditions, 
which arose from his service, mitigated the misconduct. His military service was 
otherwise faithful and meritorious, which met the requirements for an honorable 
characterization. His over 6.5-year service record included an Army Good Conduct 
Medal and zero instances of misconduct until after his traumatic accident. The 
applicant's achievements during service outweigh the unauthorized absences, which
are tied to common symptoms of PTSD, including changes in mood, thinking, 
nightmares, flashbacks to the accident, anxiety, depression, and impulsive behavior.

	b.  It would be an injustice if the 1990 discharge status is not upgraded, and the 
stigmatizing references not removed from the narrative reason. In the interest of justice, 
and as required by the 2016 Memorandum issued by then Acting Secretary of Defense 
Brad Carson, the Board should waive the time limit for the instant application because it 
is based on a diagnosed mental health condition. Grant de novo reconsideration 
because the previous application did not have the benefit of the supplemental guidance.

3.  The applicant enlisted in the Regular Army on 10 May 1983, for 3 years. His military 
occupational specialty was 64C (Heavy Vehicle Driver). 

4.  The applicant served in Germany from 6 October 1983 through 15 November 1987.

5.  The applicant reenlisted in the Regular Army on 10 October 1986, for 4 years.

6.  The applicant was absent without leave (AWOL) from on or about 23 October 1989 
to on or about 19 November 1989, from 27 November 1989 to 27 November 1989 and 
from 11 December 1989 through 25 November 1989.

7.  Court martial charges were preferred against the applicant on 10 January 1990 for 
violation of the Uniform Code of Military Justice (UCMJ). His DA Form 458 (Charge 
Sheet) shows he was charged with being AWOL from on or about:

*	23 October 1989 to on or about 20 November 1989
*	27 November 1989 to on or about 28 November 1989
*	11 December 1989 to on or about 26 December 1989.

8.  The applicant consulted with legal counsel on or about 11 January 1989 [sic] and 
was advised of the basis for the contemplated trial by court-martial; the maximum 
permissible punishment authorized under the UCMJ; the possible effects of a UOTHC 
discharge; and the procedures and rights that were available to him.

	a.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-
martial. In his request for discharge, he acknowledged his understanding that by 
requesting discharge, he was admitting guilt to the charge against him, or of a lesser 
included offense that also authorized the imposition of a bad conduct or dishonorable 
discharge. He further acknowledged he understood that if his discharge request was 
approved, he could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the VA, and he could be deprived of his rights and 
benefits as a veteran under both Federal and State laws.

	b.  He did not submit statements in his own behalf.

9.  The applicant’s record is void of the separation authority's approval of his request for 
discharge in lieu of court-martial. However, Orders 42-11, dated 7 March 1990, 
reassigned him for separation processing and discharge.

10.  The applicant was discharged on 12 March 1990. His DD Form 214 shows he was 
discharged under the provisions of Army Regulation 635-200 (Personnel Separations-
Enlisted Personnel), Chapter 10, with separation code "KFS" for discharge for the good 
of the service -in lieu of court martial, and Reentry Code 4. He was discharged in the 
lowest enlisted grade and his characterization of service was UOTHC. He completed 6 
years, 8 months, and 20 days of net active service. He has lost time from 23 October to 
19 November 1989, 27 November to 27 November 1989 and 11 December to 25 
December 1989. He was awarded or authorized the:

*	Army Service Ribbon
*	Overseas Service Ribbon
*	Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
*	Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar
*	Army Good Conduct Medal
*	Drivers and Mechanic Badge with Driver Badge

11.  Through counsel, the applicant provides:

     a.  An attorney letter dated 30 March 2022, that reiterates the above and a mental 
health professional diagnosed the applicant with a mental health condition, PTSD, 
resulting from his motor vehicle accident during military service.

     b.  An attorney brief with supporting documents and exhibits.
	c.  Exhibit A - the applicant’s affidavit states his unit was deployed to Honduras when 
his truck fell off the cliff, and rolled down a mountainside, flipping over multiple times. 
The truck was a canvas-top vehicle, and it is a miracle he survived. He blacked out and 
woke up in the hospital. After his release from the hospital, he was sent back to his unit. 
He never received any follow up care or evaluations of his mental health. He went 
AWOL several times near the end of 1989. At the time he was using drugs and was 
very depressed. He was lonely and self-medicating to deal with his depression and 
anxiety. A few years after he was discharged, he went to a rehabilitation center, and 
they sent him to a VA hospital. After getting some treatment he got his commercial 
driver’s license. He was unable to do the job because of his PTSD. He did not 
understand the trauma of this experience on him. He was young and naïve. He 
understands his behavior after the accident was a result of PTSD.

	d.  Exhibits B, C, E, and F as discussed above and below.

	e.  Exhibits D, G, H, I, J, K and O - Multiple medical documents regarding the 
applicant’s diagnosis and treatment for PTSD following his separation from the Army. 

	f.  Exhibit’s L, M, and N -Affidavits (Character Reference Letters) that collectively 
attest to the applicant's mental state and how he "changed" following his service in 
Germany and after the accident. The letters speak of his being a good husband, father, 
son, and brother and to his moral character.

	g.  Exhibit P- the applicant’s Enlistment Physical.

12.  On 11 June 1999, the Army Discharge Review Board (ADRB) determined the 
applicant was properly and equitably discharged and denied his request for a change in 
the character and/or reason of his discharge. 

13.  On 21 July 1999, the ABCMR denied the applicant’s request for upgrade of his 
discharge; however, the Board corrected his records by showing he was eligible for a 
complete and unconditional separation from military service at the time of his honorable 
discharge on 9 October 1986 and on 5 January 2000, the ABCMR corrected the 
applicant’s records and issued a DD Form 215 (Correction to DD Form 214) by adding 
his continuous honorable service.

14.  On 5 December 2000, the ADRB informed the applicant that his case would only be 
reconsidered by requesting a personal appearance hearing. 

15.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial.

16.  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.

17.  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.

18.  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 an upgrade of his 12 March 
1990 discharge characterized as under other than honorable conditions.  He states 
through counsel: 

“Surviving multiple physical injuries after a serious truck convoy accident during 
overseas service in 1988 {sic}, Petitioner began to suffer from PTSD and related 
symptoms.  His untreated mental health conditions, which arose from his service, 
mitigated the misconduct.

Injustice - His military service was otherwise faithful and meritorious, which met 
the requirements for an honorable characterization.  His over 6.5-year service 
record included a Good Conduct Medal and zero instances of misconduct until 
after his traumatic accident.  The Petitioner's achievements during service 
outweigh the unauthorized absences, which are tied to common symptoms of 
PTSD, including changes in mood and thinking, nightmares, flashbacks to the 
accident, anxiety, depression and impulsive behavior.  It would be an injustice if 
the 1990 discharge status is not upgraded and the stigmatizing references not 
removed from the narrative reason.”  

    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The DD 214 for the period of service under consideration 
shows he entered the Regular Army on 10 May 1983 and was discharged under other 
than honorable conditions on 12 March 1990 under the separation authority provided by 
chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 1989): 
Discharge for the Good of the Service.  The DD 214 shows three periods of lost time: 23 
October thru 19 November 1989, 27 November 1989, and 11-25 December 1989. 

    c.  The request for a discharge upgrade was denied by the ABCMR on 21 July 1999 
(AR1999021818).  Rather than repeat their findings here, the board is referred to the 
record of proceedings for that case.  Because this denial was before the institution of 
liberal consideration polices, this review will concentrate on evidence of a potentially 
mitigating mental health condition as well as new evidence submitted with this 
application.

    d.  From the prior ROP:

“The applicant has no record of any type of disciplinary action prior to departing 
absent without leave (AWOL) 23 October through 18 November 1989, 27 
November 1989, and 11 through 25 December 1989 ...
On 12 March 1990, the applicant was discharged, in pay grade E-1, under the 
provisions of Army Regulation 635-200, Chapter 10, for the good of the service 
with a discharge UOTHC. He had completed 6 years, 8 months and 20 days of 
creditable active service and had 44 days of lost time.”

    e.  From the applicant’s self-authored letter:

On February 8, 1989, I was driving the lead truck in a convoy through the 
mountains in Honduras.  We had just dropped off a group of Soldiers, and I was 
alone in the lead truck.  I was leading the convoy along a narrow, winding, 
cliffside mountain road with no guardrails. It had been raining and the road was 
slick.  

I came around a bend in the road and there was a small civilian car stalled out 
directly in the middle of the road.  In that moment, I knew my only options were to 
hit the car or slam on the brakes and try to avoid it and risk skidding off the road 
...
I slammed on the brakes as hard as I could and tried to avoid hitting the car.  The 
truck skidded, lost control, and went over the side of the cliff dropping 
approximately 300 feet.  When my truck fell off the cliff, it rolled down the 
mountain side, flipping over multiple times.  The truck was a canvas-top, and it is 
a miracle that I survived ...

That accident changed everything.  Before the accident had been a career-
focused Soldier and a family man.  After the accident, I became anxious and 
depressed.  I began having nightmares immediately after the accident.  I wanted 
to get back on the road and be a truck driver like I had always been, but I was too 
scared. I had flashbacks to the accident and was afraid it would happen again.  
…The depression and anxiety I was experiencing began to negatively affect my 
work performance and my family life.
After the accident, I did not know how to deal with the feelings and the symptoms 

I was experiencing, so I turned to drugs to help me deal with the pain and the 
anxiety.  Once I started using drugs, things got even worse. My wife decided to 
leave and take my children back to the U.S. with her ... 
I went AWOL several times near the end of 1989. At the time, I was using drugs 
and was very depressed about my family leaving.  I was lonely and self-
medicating to deal with my depression and anxiety.  

    f.  In a 27 February 1989 discharge summary from Gorgas Army Hospital in Panama:

“HISTORY OF PRESENT ILLNESS:  This is a 24-year-old black male who was 
transferred for Honduras approximately 48 hours following an accident when the 
truck in which he was riding overturned, suffering blunt trauma to his chest and 
back.”

    g.  A Charge Sheet (DD form 458) shows the applicant was charged with absence 
without leave (AWOL) from shows three periods of absence without leave: 23 October 
thru 20 November 1989, 27-28 November 1989, and 11-26 December 1989.  

    h.  On 11 January 1989, the applicant voluntarily requested discharge in lieu of trial 
by courts-martial under provisions in chapter 10 of AR 635-200.  His request was 
apparently approved as he was discharged under chapter 10 of AR 635-200 with an 
under other than honorable characterization of service and reduce in rank to private 
(E1).

    i.  Review of his records in JLV shows the applicant receives care at Veterans 
Hospital Administration (VHA) facilities and has been diagnosed with schizophrenia and 
PTSD  

Kurta Questions:

		(1)  A.	Did the applicant have a condition or experience that may excuse or 
mitigate the discharge? Yes: PTSD

		(2)  B.	Did the condition exist, or experience occur during military service? Yes

		(3)  Does the condition or experience actually excuse or mitigate the discharge? 
Yes:  As PTSD is associated with avoidant behaviors and the use of alcohol and/or illicit 
substances to self-medicate, the condition fully mitigates his periods of absence without 
leave and self-reported drug use.

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 charged with commission of an offense punishable under the 
UCMJ with a punitive discharge. After being charged, he consulted with counsel and 
requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges 
are voluntary requests for discharge in lieu of trial by court-martial and result in an under 
other than honorable conditions discharge. 

	b.  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 sufficient evidence of in-service mitigating 
factors to overcome the misconduct. The applicant also provided 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 given his AWOL on 
multiple times, while his service clearly did not rise to the level required for an honorable 
discharge, based on published DoD guidance for liberal consideration of discharge 
upgrade, the Board determined an upgrade of the characterization of service to general, 
under honorable conditions is appropriate. 

	c.  The applicant was separated due to his voluntary request for discharge in order 
to avoid a court-martial. Had he not gone AWOL, there would not have been a reason to 
prefer court-martial charges against him, and he would not have had to make a choice 
between the court-martial and the administrative discharge in lieu of trial by court-
martial. Although the Board determined that PTSD mitigates his periods of AWOL and 
self-reported drug use which warrants an upgrade to the characterization of service, this 
determination does not change the fact that the reason for his discharge was in lieu of 
trial by court-martial. Based on a preponderance of evidence, the Board determined that 
the narrative reason for separation the applicant received upon separation was not in 
error or unjust.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant amendment of 
the ABCMR's decision in Docket Number AR19990021818 on 21 July 1999. As a result, 
the Board recommends that all Department of the Army records of the individual 
concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 
12 March 1990 showing:

*	Character of Service: General, Under Honorable Conditions
*	Separation Authority: No Change
*	Separation Code: No Change
*	Reentry Code: No Change
2.  The Board further determined that the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to upgrading her discharge to fully honorable or changing 
the narrative reason for separation.

	 
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. 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 10 of that regulation provided, in pertinent part, that a member who had 
committed an offense or offenses for which the authorized punishment included a 
punitive discharge, could submit a request for discharge for the good of the service in 
lieu of trial by court-martial. The request could be submitted at any time after charges 
had been preferred and must have included the individual's admission of guilt. Although 
an honorable or general discharge was authorized, a UOTHC discharge was normally 
considered appropriate.

2.  Title 10, U.S. Code, 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 635-5-1 (Separation Program Designator (SPD) Codes) provides 
the specific authorities (regulatory or directive), reasons for separating Soldiers from 
active duty, and the separation codes to be entered on the DD Form 214. This 
regulation prescribed that the separation code "KFS" was the appropriate code to 
assign to Soldiers separated under the provisions of Army Regulation 635-200, 
Chapter 10, based on discharge in lieu of trial by court-martial.

4.  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 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.  The Acting Principal Deputy Under Secretary of Defense (Personnel and Readiness) 
provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 
2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the 
statute of limitations. Fairness and equity demand, in cases of such magnitude that a 
Veteran's petition receives full and fair review, even if brought outside of the time limit.  
Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit 
of the application of the Supplemental Guidance, shall be, upon petition, granted de 
novo review utilizing the Supplemental Guidance.

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 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)	AR20220007613


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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