IN THE CASE OF

		BOARD DATE: 16 March 2023

		DOCKET NUMBER: AR20220007836


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded. 

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

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate if Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states he was injured in Bosnia and treated horribly by his first 
sergeant and captain. His left ankle was damaged, and his left wrist was broken. He 
was sent to the States to recover but was not allowed to voluntarily separate. He is now 
totally disabled.

3.  On the applicant's application, he indicates mental health issues as contributing and 
mitigating factors in the circumstances that resulted in his separation. However, he 
provided no supporting documentation of any medical or mental health diagnosis.

4.  The applicant enlisted in the Regular Army on 16 April 1992 for 3 years with an 
immediate reenlistment on 23 August 1996. The highest grade he held was E-5.

5.  The applicant tested positive for cocaine on 27 January 1997 on a random drug 
screening.

6.  The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform 
Code of Military Justice on 3 February 1997, for between 6 December 1996 and 
6 January 1997, illegal use of cocaine. His punishment included reduction to E-4.

7.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 6 February 1997, 
shows the applicant had no abnormalities in behavior, level of orientation, mood, 
thinking process, thought content, or memory. He was determined to be mentally 
capable to understand and participate in the proceedings deemed appropriate by 
command.

8.  The applicant's immediate commander notified the applicant on 10 March 1997, of 
his intent to initiate actions to separate him under Army Regulation 635-200 (Personnel 
Separations – Enlisted Personnel), Chapter 14, for misconduct – commission of a 
serious offense.

9.  The applicant consulted with legal counsel on 12 March 1997. He was advised of the 
basis for the contemplated discharge, the possible effects of an under honorable 
conditions discharge, and the procedures and rights that were available to him. He 
elected to submit a statement in his own behalf; however, his statement is not available 
for review.

10.  The applicant's immediate commander formally recommended his separation from 
service under the provisions of Army Regulation 635-200, paragraph 14-12c. His 
commander noted the specific reason as the applicant's positive drug test for use of a 
controlled substance. 

11.  The appropriate authority approved the discharge recommendation and directed 
the applicant be issued a DD Form 257A (General Discharge Certificate). 

12.  The applicant was discharged on 11 April 1997. His DD Form 214 confirms he was 
discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for 
misconduct and his service characterization was under honorable conditions (general). 
He was credited with 4 years, 11 months, and 26 days of net active service.

13.  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.  

?
14.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an upgrade of under 
honorable conditions, general, discharge.  He contends his misconduct was related to 
other mental health issues.

    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The 
applicant enlisted in the Regular Army on 16 April 1992 for 3 years with an immediate 
reenlistment on 23 August 1996; 2) He tested positive for cocaine on 27 January 1997 
on a random drug screening; 3) He accepted nonjudicial punishment (NJP) under 
Article 15 of the Uniform Code of Military Justice on 3 February 1996, for between 6 
December 1997 and 6 January 1997, illegal use of cocaine; 4) The applicant was 
discharged on 11 April 1997under the provisions of Army Regulation 635-200, 
paragraph 14-12c, serious misconduct

    c.  A review of the electronic military medical record (AHLTA) was not conducted as 
the system was not in use during the applicant’s time in service. Included in the 
applicant’s packet was a DA Form 3822-R (Report of Mental Status Evaluation) dated 6 
February 1997, that showed the applicant had no abnormalities in behavior, level of 
orientation, mood, thinking process, thought content, or memory. He was determined to 
be mentally capable to understand and participate in the proceedings deemed 
appropriate by command.  No other hardcopy military BH-related records were provided 
for review.  A review of the VA electronic medical record (JLV) showed the applicant 70 
percent service-connected (SC) for physical disabilities.  He does not have a SC BH 
diagnosis but has received BH-related care through the VA system.  

    d.  The applicant’s first BH-related treatment engagement with the VA appears to 
have occurred at the Baltimore MD VA on 21 June 2019.  The applicant was referred for 
a BH evaluation by his PCM secondary to a positive screening for PTSD.  The applicant 
complained of difficulty sleeping, chronic pain, depressed mood, and distressing 
memories related to military service in Bosnia.  Symptoms reportedly began in 1997 
after he left the military. He also reported chronic nicotine use of 1 to 2 packs per day.   
He was diagnosed with Chronic Pain Syndrome, Tobacco Use Disorder, with rule-outs 
for Alcohol Use Disorder and Depressive Disorder, and referred for outpatient individual 
and group therapy. Records show the applicant participated in outpatient individual and 
group therapy through November 2021 and made fair progress.  His BH diagnoses of 
record were Adjustment Disorder with Depressed Mood, Chronic Pain Syndrome, 
Reaction to Severe Stress, and Nicotine Dependence uncomplicated.  Records are void 
of evidence the applicant was ever diagnosed with PTSD.

    e.  The applicant contends his misconduct was related to other mental health issues 
but provided no additional context or content.  A review of the records was void of the 
applicant being diagnosed or treated for a BH-related condition while on active duty.  
Post service records showed him 70 percent SC for physical disabilities but no SC for 
BH-related diagnosis.  The applicant’s VA BH problem list include Adjustment Disorder, 
Chronic Pain Syndrome, Nicotine Dependence, and Reaction to Severe Stress.  
Records suggest the onset for all the above diagnosis was after service and none were 
deemed SC.    

    f.  Based on the available information, it is the opinion of the Agency Behavioral 
Health Advisor that there is insufficient evidence in the records that the applicant had a 
condition or experience that mitigated his misconduct.  However, he contends his 
misconduct was related to other mental health issues, and per Liberal Consideration 
guidance his contention is sufficient to warrant the Board’s consideration. 
Kurta Questions:
1.	Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? Yes.  The applicant contends his 
misconduct was related to other mental health issues.

2.	Did the condition exist or experience occur during military service? Yes. 

3.	Does the condition or experience actually excuse or mitigate the discharge? 
No.  The applicant contends his misconduct was related to other mental 
health issues but provided no additional context or content.  A review of the 
records was void of the applicant being diagnosed or treated for a BH-related 
condition while on active duty.  Post service records showed him 70 percent 
SC for physical disabilities but no SC for BH-related diagnoses.  The 
applicant’s VA BH problem list include Adjustment Disorder, Chronic Pain 
Syndrome, Nicotine Dependence, and Reaction to Severe Stress.  Records 
suggest the onset for all the above diagnosis was after service and none were 
deemed SC. 

BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, a medical review, and published Department of Defense 
guidance for liberal consideration of discharge upgrade requests. The Board considered 
the applicant's statement, his record of service to include deployment, the frequency 
and nature of his misconduct, and the reason for his separation. The Board considered 
the applicant's mental health claim and the review and conclusions of the Agency 
Behavioral Health 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 concurred with the 
conclusion of the medical advising official regarding his misconduct not being mitigated 
by any medical or behavioral health conditions.  Based on a preponderance of 
evidence, the Board determined the character of service the applicant received upon 
separation was not in error or unjust.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.

	 
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to 
timely file within the 3-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an 
applicant seeking corrective action by the Army Review Boards Agency (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 Soldiers whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 (Separation for Misconduct) establishes policy and prescribes 
procedures for separating personnel for misconduct because of minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by civil 
authorities, desertion, and absence without leave.

	d.  Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who 
committed a serious military or civilian offense, when required by the specific 
circumstances warrant separation and a punitive discharge was or could be authorized 
for that same or relatively similar offense under the UCMJ.

4.  The Secretary of Defense directed the Service Discharge Review Boards (DRBs) 
and Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 
to carefully consider the revised PTSD criteria, detailed medical considerations, and 
mitigating factors when taking action on applications from former service members 
administratively discharged under other than honorable conditions (UOTHC) and who 
have been diagnosed with post-traumatic stress disorder (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 Under Secretary of Defense for Personnel and Readiness provided clarifying 
guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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 sexual 
assault or sexual harassment was unreported, or the mental health condition was not 
diagnosed until years later. Boards are to give liberal consideration to Veterans 
petitioning for discharge relief when the application for relief is based in whole or in part 
on those conditions or experiences. The guidance further describes evidence sources 
and criteria and requires Boards to consider the conditions or experiences presented in 
evidence as potential mitigation for misconduct that led to the discharge.

6.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont.)	AR20220007836


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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