IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220007747 APPLICANT REQUESTS: * reconsideration of his previous request for an upgrade of his bad conduct discharge (BCD) to honorable * his narrative reason for separation be changed from "Court-Martial, Other" to "Secretarial Authority" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 20 July 2021 * Brief from Counsel (9 pages) with 13 Exhibits (58 pages) labeled as: * Exhibit 1 – DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 November 1997 * Exhibit 2 – DA Form 2823 (Sworn Statement) * Exhibit 3 – DA Form 5181 (Screening Note of Acute Medical Care) * Exhibit 4 – Standard Form (SF) 93 (Report of Medical History) * Exhibit 5 – National Guard Bureau (NGB) Form 22 (NGB – Report of Separation and Record of Service) * Exhibit 6 – Army Board for Correction of Military Records (ABCMR) Docket Number AR20170004048 * Exhibit 7 – DD Form 214 for the period ending 25 October 2007 * Exhibit 8 – Special Court-Martial Order (SPCMO) Number 169 * Exhibit 9 – U.S. Army Court of Criminal Appeals Decision on Further Review * Exhibit 10 – Army Discharge Review Board (ADRB) Docket Number AR20120009578 * Exhibit 11 – Carson Memorandum * Exhibit 12 – Kurta Memorandum * Exhibit 13 – Disability ratings list ? 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 AR20170004048 on 20 March 2018. 2. Through counsel, the applicant provides a brief that is available in its entirety for the Board's consideration. In effect, counsel contends the applicant's discharge should be upgraded to Honorable, and the narrative reason for separation, Separation Program Designator (SPD) code, and Reentry Eligibility (RE) code should be changed to reflect "Secretarial Authority" as a matter of clemency. a. While serving in Korea during his period of enlistment in the Regular Army (RA), the applicant received a head injury when he was struck in the head by a fellow servicemember during an altercation and struck his head on a metal pole. (Exhibits 1 and 2) b. The applicant was subsequently treated for the injury to his head. During treatment, he received sutures and complained of headaches, pain with eye movement, and photophobia. The medical care provider also noted the applicant suffered decreased vision in both eyes. His medical records show that five months afterward he continued to suffer from dizziness, fainting, frequent headaches, and difficulties with his eyes. He was ultimately discharged on 21 November 1997, due to Unsatisfactory Performance with a service characterization of Honorable. (Exhibits 3 and 4) c. He enlisted in the Louisiana Army National Guard (LAARNG) and served until he was honorably discharged to enlist in the U.S. Army Reserve (USAR). While serving in the USAR, he served on active duty in support of Operation Enduring Freedom (OEF) and was deployed to Kuwait from 8 February 2003 to 31 May 2003. (Exhibits 5, 6, and 7) d. He was brought before a SPCM and subsequently sentenced to a BCD, confinement, and reduction to the lowest enlisted rank/grade. (Exhibits 6 and 8) e. The applicant requested reconsideration of his discharge by way of the ADRB and his request was denied. He then requested consideration from the ABCMR, which was also denied. f. Counsel contends the applicant has been prejudiced as a result of his erroneous discharge from the Army. The error is evident in that the applicant's diagnosis of a traumatic brain injury (TBI) and his claim of post-traumatic stress disorder (PTSD) were not properly considered under the memorandum issued by the Under Secretary of Defense [Kurta] that clarified and expanded guidance as to whether a Veteran's PTSD might mitigate the circumstances that led to the Veteran's discharge. (Exhibit 12) g. The ADRB and ABCMR failed to apply "liberal consideration" to the applicant's claim of PTSD and fully disregarded the evidence he supplied proving the existence of TBI. In order to counter his claim that he suffered from PTSD, the Board forwarded the applicant's file to the Army Review Boards Agency (ARBA) psychiatrist who made the determination, based solely on the applicant's military medical history, that he did not suffer from PTSD. The decision also noted that the applicant did not provide "medical notes from experts stating his diagnosis." The Kurta memorandum does not require a diagnosis from a mental health professional. The Department of Veterans Affairs (DVA) also determined that he suffered service related TBI. (Exhibits 3, 4, 6, and 13) h. The evolving science of PTSD and TBI should also have been considered when the Board made its determination regarding the applicant's conditions because as the Kurta Memo states: "It is unreasonable to expect the same level of proof for injustices committed years ago when TBI [and PTSD] were far less understood than they are today." (Exhibit 12) i. The applicant is a decorated Veteran who, like countless others, suffered in silence following his service. His actions, which he deeply regrets, align with the diagnosis of PTSD and TBI and are supported by the DVA's determination of his TBI disability. He has worked hard since his separation to overcome the mental health challenges imposed on him by this condition. 3. The applicant's record shows he enlisted in the RA for a period of 4 years on 17 April 1996. Upon completion of initial entry training, he was assigned to a unit located in South Korea. On 21 November 1997, he was honorably discharged due to unsatisfactory performance. 4. On 11 May 2000, the applicant enlisted in the LAARNG for a period of 3 years. His NGB Form 22 shows he was honorably discharged from the LAARNG on 27 February 2002 for the purpose of immediate enlistment in any component of the Armed Forces. 5. Orders 02-361-00489, issued by Headquarters, and Headquarters Company, 377th Theater Support Command, New Orleans, LA on 27 December 2004, show the applicant was reassigned to the 321st Materiel Management Center, Theater Support, Baton Rouge, LA, effective 27 December 2002. Orders M-362-0209, issued by the same authority on 28 December 2002 show the applicant was ordered to active duty as a member of his Reserve Component unit for a period of 365 days in support of OEF with a reporting date of 3 January 2003. 6. The applicant's duty status was changed from Present for Duty (PDY) to Confined by Military Authorities (CMA) for pre-trial confinement in the Mannheim Confinement Facility, Mannheim, Germany, effective 1 June 2003. He was assigned to Detachment 8, 321st Theater Materiel Management Center, Camp Doha, Kuwait. Upon completion of his sentence, his duty status was changed from CMA to PDY, effective 17 July 2003. 7. SPCMO Number 2 issued by Third U.S. Army, U.S. Army Forces Central Command (CENTCOM), Coalition Forces Land Component Command (CFLCC) on 2 June 2004 shows the applicant was arraigned at Camp Doha, Kuwait. a. With some concessions, he pled guilty and was found guilty of four Specifications of Violation of Article 91, of the Uniform Code of Military Justice (UCMJ) by being disrespectful in language towards noncommissioned officers (NCO) and for willfully disobeying a lawful order from an NCO. b. Only so much of the sentence extending to reduction from the rank/grade of specialist (SPC)/E-4 to private (PV1)/E-1, confinement for 50 days, and a BCD was approved, and except for the portion of the sentence pertaining to the BCD was ordered to be executed. c. He was credited with 20 days of confinement credit. 8. On 15 March 2006, the U.S. Army Court of Criminal Appeals determined they were not confident that the convening authority was specifically presented with the applicant's clemency submission before he acted on the applicant's case. As a result, the convening authority's initial action, dated 2 June 2004, was set aside and the record of trial was returned to the Judge Advocate General for a new initial action by the same or different convening authority. 9. SPCMO Number 169 issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 3 August 2006 shows the applicant was arraigned at Camp Doha, Kuwait at a SPCM convened by Commander, Third U.S. Army, U.S. Army Forces CENTCOM, CFLCC. a. With some concessions, he pled guilty and was found guilty of: * five Specifications of Violation of Article 91, UCMJ by being disrespectful in language towards an NCO three times and for willfully disobeying lawful orders from an NCO twice * two Specifications of Violation of Article 128, UCMJ by: * unlawfully snatching another Soldier by the Shoulders then grabbing him by the neck with his hands * assaulting an NCO by pushing him on the chest with his hands b. The following sentence was adjudged on 7 July 2003: reduction from the rank/grade of SPC/E-4 to PV1/E-1, confinement for 3 months, and a BCD. Only so much of the sentence as provided for BCD, confinement for 50 days, and reduction to the rank/grade of PV1/E-1 was approved, and except for the portion of the sentence pertaining to the BCD was ordered to be executed. c. The applicant was credited with 50 days of confinement credit against his sentence to confinement. The sentence to confinement had been served. d. On 25 January 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 10. SPCMO Number 106, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 19 July 2007, noted the sentence had been finally affirmed and ordered the BCD to be duly executed. 11. Orders and a DD Form 214 show the applicant was discharged from the USAR on 26 October 2007. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of "Court-Martial, Other." His service was characterized as bad conduct, with SPD "JJD" and RE Code "4." He was credited with completion of 4 years, 8 months, and 5 days of net active service this period, with lost time from 1 June 2003 until 16 July 2003 due to confinement. He was separated from service on temporary records and his affidavit. He served in Kuwait from on or before 8 February 2003 (exact date unknown) to 31 May 2003. 12. The applicant's record is void of evidence showing he was diagnosed with PTSD or any other medical of behavioral health condition during his period of service. 13. On 2 May 2012, the applicant petitioned the ADRB for an upgrade of his discharge and a change to the narrative reason for his separation in order to improve his civilian employment opportunities and to make him eligible for Veterans' benefits. On 2 November 2012, the applicant was notified the ADRB had carefully reviewed his application, military records, and all available evidence and determined that he was properly and equitably discharged. Accordingly, his request was denied. 14. On 17 March 2017, the applicant petitioned the ABCMR for an upgrade of his discharge and a change to the narrative reason for his separation based on PTSD and a congenital brain defect. On 20 March 2018, the ABCMR carefully reviewed his application, military records, and all available evidence and determined that the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of the records. Accordingly, his request for a change in the character and reason for his discharge was denied. 15. In addition to the previously discussed evidence, counsel provides the following Exhibits: a. Exhibit 2 – A DA Form 2823, dated 11 May 1997, which shows a Soldier rendered a sworn statement wherein he described the circumstances of a physical altercation between the applicant and another Soldier that resulted in the applicant's head striking a metal pole. b. Exhibit 3 – A DA Form 5181, dated 12 May 1997, which shows the applicant was treated for eye pain, decreased vision, headaches, and photophobia stemming from running into a pole while fighting. c. Exhibit 4 – An SF 93, dated 8 October 1997, shows the applicant underwent a pre-separation medical examination at the end of his first period of enlistment. He reported, in part, he had experienced: * living with someone who had tuberculosis * coughed up blood * frequent or severe headaches * dizziness of fainting spells * eye trouble * shortness of breath * pain or pressure in his chest * mono vision in both eyes * frequent trouble sleeping d. Exhibit 11 – The "Carson Memorandum" e. Exhibit 12 – The "Kurta Memorandum" f. Exhibit 13 – A list of disability ratings that bears no indication to whom they pertain. 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. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 18. Department of Defense 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 can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 19. 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 26 October 2007 bad conduct discharge stating the misconduct which lead to his convictions and discharge were due to and a head injury in 1996 and PTSD. He states through counsel: “The acts committed by the Applicant were not pre-meditated, and there is no evidence in the Applicant's record to support otherwise. See generally Exhibit 12. His actions were the direct consequence of mental and physical injuries incurred during his service. Additionally, the Applicant's myriad awards accumulated throughout his service demonstrate his dedication to the United States Army. The Applicant respectfully submits that the severity of his PTSD and TBI related to both the physical and mental trauma he suffered, outweigh the discharge.” 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 of service under consideration shows he entered the active duty on 6 January 2003 and was discharged on 26 October 2007 under the separation authority provided by chapter 3 of AR 635- 200, Active Duty Enlisted Administrative Separations (6 June 2005): Court-Martial. His DD 214 shows “Service in Kuwait: ON or before 20030208 (exact date unknown) to 20030531). The DD 214 shows the sum of his decorations, medals, and badges for all periods of service consisted of a National Defense Service Medal, a Global War on Terrorism Expeditionary Medal, an Army Service Ribbon, and an Overseas Service Ribbon. c. The request for a discharge upgrade was denied by the ABCMR on 20 March 2018 (AR20170004048). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on new evidence submitted with this application. d. A one-page medical document from 1997 shows the applicant presented with eye pain and headaches after injuring his head: “19-year-old male with complaint of eye pain and decreased vision for 1 day. Patient says he ran into a pole while fighting. Patient had 3 stiches over left eye and says both eyes hurt when he closes them very fast. Patient says he has been having headaches and photophobia.” e. He was diagnosed with a “head injury,” referred to optometry, and directed to return as needed. There is no evidence the applicant sustained a concussion or other significant head injury or had any residuals from this injury. f. On the first page of a Report of Medical History completed 8 October 1997 as part of a chapter 13 of AR 635-200 separation for unsatisfactory performance, the applicant wrote that his health was “good” while marking boxes denoting he had or had a history of frequent headaches, dizziness or fainant spells, and eye trouble. Neither the remainder of the Report of Medical History nor the accompanying Report of Medical Examination were available for review. g. A Special Court-Martial Order dated 3 August 2006 shows the applicant was found guilty of 5 specifications of insubordinate conduct and two specifications of assault. h. No other medical documentation was submitted with the application and there are no encounters in AHLTA. JLV shows the applicant has a service-connected disability rating for traumatic brain disease but no diagnosed mental health conditions. Kurta Questions (1) Kurta 1: Yes, the applicant has been diagnosed with traumatic brain injury, a potentially mitigating condition. (2) Kurta 2: Yes, the applicant’s head injury is documented in the military medical records. VA service connection for traumatic brain disease establishes that the condition occurred during military service. (3) Kurta 3: No. Review of the military medical records indicates that the applicant’s head injury was mild and did not result in loss of consciousness. There is no evidence indicating that the applicant sustained a concussion, significant head injury or had any residuals from the head injury. Given that the natural history of a mild traumatic brain injury is a return to full function within 3-6 months, it is highly unlikely that a mild TBI without loss of consciousness occurring in 1997 would result in serious misconduct in 2005. While the medical advisor findings indicate that there are no mitigating BH conditions, the applicant’s contention alone per Liberal Consideration is sufficient for board’s consideration. 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, record of service, the frequency and nature of the misconduct and the reason for separation. a. The evidence shows a special court-martial convicted the applicant of five specifications of being disrespectful in language towards an NCO and willfully disobeying lawful orders from an NCO, and two specifications of unlawfully snatching another Soldier by the Shoulders then grabbing him by the neck with his hands and assaulting an NCO by pushing him on the chest with his hands. The court sentenced him to a bad-conduct discharge and reduction to E-1. The evidence shows his trial by a court-martial was warranted by the gravity of the offense charged. His conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. b. The Board reviewed and concurred with the medical advisor’s finding no mitigating behavioral health conditions. The applicant does not provide sufficient evidence of post-service achievements or letters of reference that outweigh his misconduct and to support 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. c. The applicant’s narrative reason was assigned based on the fact that he was convicted by a court-martial. Absent his serious offenses, there would not have been a reason of the court-martial, which ultimately convicted him. The only valid narrative reason for separation is court-martial which is appropriately listed on his DD Form 214. 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 to amend the decision of the ABCMR set forth in Docket Number AR20170004048 on 20 March 2018. 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 the 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. Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Court-martial convictions stand as adjudged or modified by appeal through the judicial process, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 4. Title 10, USC, Section 1552(b), provides, with respect to courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 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. 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. 6. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. (1) An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: * Use of force or violence to produce bodily injury or death * Abuse of a position of trust * Disregard by a superior of customary superior-subordinate relationships * Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army * Deliberate acts or omissions that seriously endanger the health and safety of other persons d. A BCD will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. e. A dishonorable discharge will be given to a Soldier pursuant only to an approved sentence of a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 7. Army Regulation 635-5-1 (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. It states that the separation code "JJD" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 3, by reason of Court-Martial. Additionally, the SPD/RE Code Cross Reference Table established that RE code "4" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 8. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use, but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 9. 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 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. 10. The Under Secretary of Defense for 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, 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. 11. The Under Secretary of Defense for 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) AR20220007747 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1