IN THE CASE OF:  

		BOARD DATE:  21 March 2023

		DOCKET NUMBER:  AR20220008402


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)
*	Medication Service Progress Note – Initial Medication Evaluation, the applicant 
labeled as Psychological Assessment by the Psychiatrist, dated 21 June 2019
*	Adult Full Assessment, the applicant labeled as Psychological Assessment by a 
Social Worker (SW), dated 12 December 2021
*	SW Verification of Treatment and Diagnosis letter, dated 19 May 2022

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 wants an upgrade because he suffered from depression and 
alcoholism which made him unable to make sound decisions. 

3.  The applicant’s service records show: 

   a.  On 23 June 1987, the applicant enlisted in the Regular Army, for a 4-year service 
obligation. Upon completion of his training and award of military occupational specialty 
44E (Machinist), he was assigned to Fort Devens, MA, and arrived at his unit on 4 April 
1988. 

   b.  The applicant accepted nonjudicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions, 
for the following offenses: 

*	14 December 1988, for failing to go at the time prescribed to his appointed 
place of duty on or about 9 December 1988, his punishment included seven 
days extra duty and seven days of restriction
*	10 February 1989, for absenting himself from his unit on or about 17 January 
1989 until on or about 6 February 1989, his punishment included reduction to 
Private/E-1, 45 days extra duty, and 45 days restriction
*	23 February 1989, for failing to go to his appointed place of duty on or about 
16 February 1989, his punishment included 14 days extra duty and restriction 
beginning 28 March 1989

   c.  On 13 March 1989, the applicant underwent a separation medical examination. 
The corresponding forms show, the applicant listed he was having headaches and 
taking medication for them, that he had a previous head injury, skin disease, and 
recurrent back pain. The examining provider noted his ailments and stated he was 
undergoing treatment for dermatitis and migraines and found him qualified for 
separation. There were no mental health issues noted at this time.

   d.  On 13 March 1989, the applicant underwent a mental status examination. The 
DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant had the 
mental capacity to understand and participate in proceedings and was mentally 
responsible. 

   e.  On 28 March 1989, the applicant accepted NJP, under the provisions of Article 
15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty on 
or about 16 March 1989. His punishment included seven days extra duty and seven 
days of restriction. 

   f.  On 11 April 1989, the applicant's immediate commander notified the applicant of 
his intent to initiate actions to separate him with an UOTHC discharge, under the 
provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), paragraph 14-12b, by reason of misconduct. As the reasons, his 
commander cited the applicant's disobeying a lawful order, numerous failures to be at 
appointed place of duty, numerous missing formations, and extra duty, writing a bad 
check, NJPs and being counseled for substandard duty performance. 

   g.  On 11 April 1989, the applicant consulted with counsel and acknowledged receipt 
of the notification memorandum. He was advised of the basis for the contemplated 
action to separate him and of the rights available to him. He elected to waive his rights 
and not submit a statement in his own behalf. 

   h.  On 12 April 1989, the applicant's commander formally recommended the 
applicant's separation, under the provisions of AR 635-200, paragraph 14-12b, and a 
waiver of further rehabilitative measures. He also noted that he informed the applicant 
on 10 February 1989 his continued misconduct could result in separation. 

   i.  On 13 April 1989, the applicant's intermediate commander recommended 
approval of his separation. On 1 May 1989, the separation authority waived the 
requirement for a rehabilitative transfer, approved the recommended discharge, and 
directed the applicant be issued an UOTHC discharge. 

   j.  On 5 May 1989, the applicant was discharged. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) confirms he was discharged under the 
provisions of AR 635-200, paragraph 14-12b, by reason of misconduct – pattern of 
misconduct. His service was characterized as UOTHC, and he was credited with 
completing 1 year, 9 months, and 25 days of net active service this period. He was 
awarded or authorized the Army Service Ribbon and two marksmanship badges.

4.  On 12 February 1986, the Army Discharge Review Board (ADRB) reviewed the 
applicant's request for an upgrade of his discharge. The Board determined after careful 
consideration of his military records and all other available evidence, that he was 
properly discharged, and denied his request.

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 Service 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 applicant is applying to the ABCMR requesting an upgrade of his under other 
than honorable conditions discharge to honorable.  He contends he suffered from 
depression and alcoholism. 
    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 into the Regular Army on 23 June 1987; 2) The applicant accepted 
nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of 
Military Justice (UCMJ), on the following occasions, for the following offenses: 

*	14 December 1988, for failing to go at the time prescribed to his appointed 
place of duty on or about 9 December 1988.
*	10 February 1989, for absenting himself from his unit on or about 17 January 
1989 until on or about 6 February 1989.
*	23 February 1989, for failing to go to his appointed place of duty on or about 
16 February 1989.

    c.  On 28 March 1989, the applicant accepted NJP, under the provisions of Article 15 
of the UCMJ, for failing to go at the time prescribed to his appointed place of duty on or 
about 16 March 1989; 4) On 12 April 1989, the applicant's commander formally 
recommended the applicant's separation, under the provisions of Army Regulation 635-
200, paragraph 14-12b; 5) On 5 May 1989, the applicant was discharged under the 
provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – 
pattern of misconduct. 

    d.  The electronic military medical record, AHLTA, was not reviewed as it was not in 
use during the applicant’s time in service.  Included in the applicant’s packet was 
Standard Form 88 (Report of Medical Examination) dated 13 March 1989, that noted 
the applicant was undergoing treatment for dermatitis and migraines but remained 
qualified for separation.  DA Form 3822-R (Status of Mental Health Evaluation) dated 13 
March 1989, showed the applicant psychiatrically cleared for administrative separation.   
Also included in the packet were medical records from civilian BH providers attesting to 
the applicant having been diagnosed and treated for depression.  A record from a 
provider with the County of Los Angeles DMH dated 21 June 2019 showed the 
applicant diagnosed with MDD with reported symptom onset in 1990. A seconder record 
from the same facility dated 13 December 2021 showed the applicant diagnosed with 
MDD with a reported initial symptoms onset at age 13 and most recent symptoms onset 
in 2021. A letter from a provider at the facility, dated 19 May 2022, showed the provider 
found the applicant’s MDD was related to military service. A review of JLV was void of 
any BH treatment history for the applicant and he does not have a service-connected 
disability. 

    e.  Based on the available information, it is the opinion of the Agency BH Advisor that 
there is sufficient evidence in the records that the applicant had a condition or 
experience during his time in service that partially mitigated his misconduct.  


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 to contend his misconduct 
was associated with depression and alcoholism and he was been diagnosed by a 
civilian provider with MDD deemed related to military service.

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

		(3)  Does the condition or experience actually excuse or mitigate the discharge? 
Partially.  The applicant contends his misconduct was related to depression and 
alcoholism.  A review of the military medical record and VA electronic medical records 
were void of any BH-related treatment history.  However, the applicant included in his 
packet evidence that he was diagnosed with MDD and Alcohol Use Disorder in 
remission, by a civilian provider in 2019 and 2021 and the provider deemed the 
disorders were related to military service. The applicant’s misconduct characterized by 
failure to go to appointed places at the appointed times is mitigated given that 
decreased motivation, sleep related issues, memory and concentration problems are all 
natural sequela of depression and could have each contributed to the applicant’s 
misconduct.  The applicant’s misconduct characterized by going AWOL is not mitigated 
by depression as depression does not impair one’s ability to differentiate between right 
and wrong and adhere to the right.  As it relates to alcohol impairment and the ability to 
choose between right and wrong, there sufficient evidence that decision making can be 
significantly impaired during an inebriated state.  However, alcohol abusers do not stay 
in a constant state of inebriation, rater there is reasonable clarity between episode of 
inebriation whereby the individual’s ability to differently between right and wrong is not 
impaired.  One would expect that over the 3 weeks the applicant was AWOL he had 
numerous opportunities to choose the right, but instead choose to remain AWOL for the 
duration.  Given the above, the applicant’s misconduct characterized by AWOL is not 
mitigated by either Depression or Alcohol Use Disorder.   

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. The applicant was discharged from active duty due to 
Misconduct- patterns of misconduct. The Board reviewed the medical advisor’s finding 
insufficient evidence of an in service mitigating factor. The applicant provided no 
evidence of post-service achievements or letters of reference in support of a clemency 
determination. Nevertheless, the Board determine that although his service did not rise 
to the level required for an honorable discharge, as a matter of compassion, and 
contract to the medical advisor’s findings, an upgrade to a general discharge is 
appropriate under published DoD guidance for liberal consideration of discharge 
upgrade requests.

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 a 
recommendation for partial relief. 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 5 May 1989 showing the character of 
service as General, Under Honorable Conditions. 

•	Separation Authority: No Change
•	Separation Code: No Change
•	Reentry Code: No Change
•	Narrative Reason for Separation: 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 
grading his discharge to fully honorable.
	 
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, 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 635-200 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 post-traumatic stress disorder (PTSD) 
criteria, detailed medical considerations and mitigating factors when taking action on 
applications from former service members administratively discharged under other than 
honorable conditions 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)	AR20220008402


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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