IN THE CASE OF:  

BOARD DATE:  17 February 2023

DOCKET NUMBER:  AR20220008512


APPLICANT’S REQUEST:  an upgrade of his under other than honorable conditions 
discharge to an honorable character of service.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

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

2.  The applicant states, in effect, while he was on active duty, his injured his wrist and 
required surgery; he never fully recovered from that surgery, and, as a result, his 
lifestyle was never the same. 

	a.  He tried to go to physical therapy and get help with managing his pain; he wanted 
to continue performing his duties as close to normal as possible, but his leadership 
failed to support him. 

	b.  He also contends that the combination of inadequate leadership and his own 
poor choices ultimately ended his military career; he maintains that if the Board checks 
his service records, it will be evident that his behavior and duty performance markedly 
and negatively changed after the injury.

	c.  In the more than 20 years since his separation, he has continued to serve his 
country on the battlefield; he has been a civilian contractor in Iraq, from 2004 to 2009; 
Kuwait, from 2010 to 2011; and Afghanistan, from 2013 to 2015. The applicant argues 
that, at some point, his debt to society should be considered paid. 

	d.  The applicant emphasizes that having an under other than honorable conditions 
character of service has caused him a lot of stress over the years; he felt like there was 
a cloud hanging over him. He later learned that what he was dealing with was post-
traumatic stress disorder (PTSD), and, while being on the battlefield with old comrades 
and new colleagues made coping with PTSD easier, it did not cure him. If the Board 
grants his request, it will go a long way towards his recovery and his ability to support 
his family.  

	e.  On his DD Form 149, The applicant checked the box for PTSD in item 13 (ARE 
ANY OF THE FOLLOWING ISSUES/CONDITIONS RELATED TO YOU REQUEST).

3.  A review of the applicant's service records shows:

	a.  On 4 October 2001, the applicant enlisted into the Regular Army for 3 years; he 
was 19 years old. Upon completion of initial entry training and the award of military 
occupational specialty 13B (Cannon Crewmember), orders assigned him to Fort Polk, 
LA, and, on 27 March 2002, he arrived his new unit, a howitzer battery within an 
armored cavalry regiment. Effective 4 April 2002, the applicant's leadership promoted 
him to private (PV2)/E-2.

	b.  On 7 October 2002, the applicant accepted nonjudicial punishment from his 
regimental commander, under the provisions of Article 15, Uniform Code of Military 
Justice (UCMJ); the regimental commander accused the applicant of wrongfully using 
marijuana, at some point between 25 June and 24 July 2002. After conducting a closed 
hearing, during which the applicant personally presented matters in defense, mitigation, 
and/or extenuation, the regimental commander found the applicant guilty and directed 
the following punishments: reduction to private (PV1)/E-1, forfeiture of $552 per month 
for 2 months (of which the commander suspended one month), and 45-days' restriction 
and extra duty.

	c.  On 19 November 2002, the Commanding General, Joint Readiness Training 
Center and Fort Polk issued the applicant a general officer memorandum of reprimand 
(GOMOR) because, on 11 October 2002, the military police had found the applicant 
was driving while intoxicated. A field sobriety test and a chemical test for intoxication 
confirmed the applicant's blood alcohol level was 0.136 grams per 100 milliliters. 
On 2 December 2002, the applicant acknowledged receipt of the GOMOR and indicated 
he would not be submitting a rebuttal. On 23 January 2003, the imposing official 
directed the GOMOR's placement in the applicant's official military personnel file. 

	d.  On 21 December 2002, the military police (MP) stopped a vehicle in an on-base 
parking lot due to "noise abatement and failure to illuminate license plate." 

		(1)  When the MPs approached the vehicle, they found four Soldiers inside (one 
of whom was the applicant). One of the MPs noticed a passenger (Private First Class 
(PFC) who was sitting in the rear of the vehicle with an open container between his 
legs; a check of this individual's driver's license showed he was under 21 years of age. 

		(2)  At that point, the MPs initiated a search and discovered a firearm under the 
front passenger floor mat, near where the applicant was seated; one of the passengers 
(Specialist (SPC) identified the firearm as his. After gaining verbal consent to search 
further, the MPs found a "green leafy substance, which tested positive for THC 
(tetrahydrocannabinol; the active ingredient in marijuana). 

		(3)  The MPs took all four Soldiers into custody; during questioning, the applicant 
offered no statements and requested an attorney. The MPs charged the applicant with 
wrongful possession of marijuana, having a concealed weapon, and failing to obey a 
lawful order or regulation by having an open container containing alcohol; all four 
Soldiers were subsequently released to their units.

	e.  On 7 January 2003, the applicant provided a urine sample that later tested 
positive for THC. 

	f.  On 14 March 2003, the applicant's command preferred court-martial charges 
against him for two UCMJ violations: Article 112a (Wrongful Use of a Controlled 
Substance, Marijuana) and Article 92 (Failure to Obey a Lawful General Regulation), by 
having alcohol in his possession while under 21 years of age. 

	g.  On 14 March 2003, after consulting with counsel, the applicant voluntarily 
requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge in Lieu 
of Trial by Court-Martial), AR 635-200 (Personnel Separations Enlisted Personnel). In 
his request, he stated no one had subjected him to coercion, and counsel had advised 
him of the implications of his request. The applicant further affirmed he was guilty of one 
of the charges against him and that counsel had informed him that he could submit 
statements in his own behalf; the applicant's service record is void of any statements he 
may have provided.

	h.  On 16 April 2003, the separation authority approved the applicant's separation 
request and directed the applicant's under other than honorable conditions discharge; 
on 13 May 2003, orders discharged the applicant accordingly. His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he 
completed 1 year, 7 months, and 10 days of his 3-year enlistment contract. Item 13 
(Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or 
Authorized) reflected the National Defense Service Medal and the Army Service 
Ribbon.
4.  During the applicant's era of service, Soldiers charged with UCMJ violations, for 
which a punitive discharge was a punishment, could request separation under chapter 
10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-
martial. The Manual for Courts-Martial then in effect stated a punitive discharge was 
one of the authorized punishments for violations of UCMJ Articles 112a (Wrongful Use 
of Controlled Substances, to include Marijuana) and 92 (Failure to Obey a Lawful 
General Order or Regulation).

5.  Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) 
does not mandate relief, but rather provides standards and principles to guide Boards in 
application of their equitable relief authority to ensure each case will be assessed on its 
own merits. In determining whether to grant relief BCM/NRs shall consider the prospect 
for rehabilitation, external evidence, sworn testimony, policy changes, relative severity 
of misconduct, mental and behavioral health conditions, official governmental 
acknowledgement that a relevant error or injustice was committed, and uniformity of 
punishment. This includes consideration of changes in policy, whereby a service 
member under the same circumstances today would reasonably be expected to receive 
a more favorable outcome. 

6.  Published guidance to the BCM/NRs clearly indicates that the guidance is not 
intended to interfere or impede on the Board's statutory independence. The Board will 
determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. In reaching its determination, the Board shall consider the 
applicant's petition, available records and/or submitted documents in support of the 
petition.  

7.  MEDICAL REVIEW: 

    a.  The applicant is applying to the ABCMR requesting an upgrade of his discharge 
under other than honorable conditions.
    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 makes numerous assertions regarding his request as outlined in 
the ROP to include an injured wrist with surgery that markedly impacted duty 
performance and behavior; “inadequate leadership and his own poor choices;” 
and PTSD.  He has multiple tours to Iraq, Kuwait, and Afghanistan as a civilian 
contractor. His DD149 endorses PTSD as related to his request.
(2)	He enlisted in the RA on 4 October 2001 at the age of 19. 
(3)	On 7 October 2002 he accepted NJP for wrongful use of marijuana.
(4)	On 19 November 2002, he was issued a General Officer Memorandum of 
Reprimand for driving while intoxicated (BAC level of .136 grams per 100 ml) on 
11 October 2002.
(5)	On 21 December 2002 the MP stopped a vehicle in an on-base parking lot.  Four 
soldiers were in the vehicle (including the applicant), one of whom had an open 
container and was under 21.  A search of the vehicle discovered a firearm near 
where applicant was seated, although another soldier the weapon as his.  Finally, 
cannabis was found in the vehicle. MPs charged the applicant with wrongful 
possession of marijuana, having a concealed weapon, and failing to obey a 
lawful order or regulation by having an open container containing alcohol.
(6)	On 7 January 2003 the applicant provided a urine sample that tested positive for 
THC (cannabis).
(7)	On 14 March 2003, court-martial charges were preferred against applicant for 
two violations of UCMJ:  wrongful use of controlled substance (marijuana) and 
failure to obey a lawful general regulation (possession of alcohol under age 21).
(8)	Applicant was discharged on 13 May 2003; his DD214 shows discharge under 
other than honorable conditions IAW AR 635-200 Chapter 10.
    c.  Supporting Documents
All supporting documents reviewed.  Lack of citation or discussion in this section should 
not be interpreted as lack of consideration.  DD Form 149 references PTSD associated 
with application, in addition to a wrist injury with associated surgery which he implies led 
to ongoing pain (eg, referencing requests for PT and pain medication to help cope).  He 
did not specify any traumatic stressors associated with his asserted PTSD.  He has 
continued to serve “on the battlefield” as a civilian contractor in Iraq, Kuwait, and 
Afghanistan.  He referenced “depression” subsequent to his discharge due to the “cloud 
hanging over my head,” presumably the nature of his discharge.
Per specific actions associated with separation via AR 635-200 Chapter 10, Charge 
Sheet of 14 March 2003 references 2 specifications:  wrongful use of marijuana on or 
about between 29 December 2002 and 7 January 2003; and failure to obey a lawful 
general order by wrongful possession of alcohol while under the age of 21, on or about 
21 December 2002.
His DD214 was reviewed and shows no foreign service and there is no evidence of time 
spent in a hostile fire area.
The applicant has not provided any additional medical or psychiatric records.
    d.  AHLTA
The Army electronic medical record, AHLTA, was reviewed.  It is void of any clinical 
information from his time of service (which generally predated implementation of 
AHLTA).  There are multiple encounters/entries from after his discharge.  Relevant to 
this opine is a 1 February 2011 evaluation noting “civilian screened…for behavioral 
health and substance abuse concerns prior to mobilization to Iraq.  Previously deployed 
x4 to Iraq and x1 to Afghanistan as contractor.”  Per psychological symptoms, “no 
significant history or current concerns that would interfere with deployment.  Civilian 
cleared to mob.” Additional evaluation on 28 June 2011, again noting “Assessment for 
Deployment,” indicates “denies meds or problems.” 
    e.  JLV
Available VA records were reviewed via JLV.  There is no indication of any service-
connected conditions, and the record is void of relevant non-DOD medical data. Two 
radiology reports were dated 11 March 2003 for injuries sustained on that date:  1. Right 
wrist: “no evidence of fracture, dislocation, arthritic or inflammatory change.  
IMPRESSION:  Normal wrist.” 2.  Left wrist: “there is a question of a fracture….this is 
seen in some of the images only.  Recommend a follow up study 7-10 days from now.”  
Left wrist follow up on 14 April 2003 indicates “routine views of the requested fracture 
site reveal no detectable fracture or dislocation.  IMPRESSION: No detectable fracture.”
    f.  Other
Query of HAIMS did not return any documents for this applicant.
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 asserts PTSD and sequelae of 
wrist injury associated with the circumstances of his discharge.

2.	Did the condition exist or experience occur during military service? Yes. Per the 
applicant’s assertion only.

3.	Does the condition or experience actually excuse or mitigate the discharge? Partial.  
The applicant asserts mitigation due to PTSD as well as (by implication) 
impairment/pain associated with a wrist injury.  Under liberal consideration, his 
assertion alone is worthy of consideration by the Board.  It is the BH advisor’s 
opinion that there is insufficient evidence to establish a diagnosis of PTSD or 
another mitigating mental health condition to include the experience of problematic 
pain. Specific to the two court-martial charges directly leading to his discharge, 
presumed PTSD or chronic pain may mitigate illicit substance use, as self-
medication is often seen as part of the natural history and sequelae of PTSD and 
pain.  However, neither of these conditions would impair one’s ability to differentiate 
right from wrong and adhere to the right, therefore the specification of failure to obey 
a lawful regulation (underage possession of alcohol) would not be mitigated. The 
only evidence of potential wrist injury, at least in available medical records, was 
dated 11 March 2003, which is after the offenses leading to court-martial charges.  
Taken as a whole, the applicant has not demonstrated the presence of PTSD or 
problematic pain at the time of service, nor a nexus of mitigation between his 
asserted conditions and the circumstances of his discharge.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that partial relief was warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service.  Upon review of 
the applicant’s petition, available military records and medical review, the Board noted 
the advising official finding insufficient evidence to establish a diagnosis of PTSD or 
another mitigating mental health condition to include the experience of problematic pain. 
Specific to the two court-martial charges directly leading to his discharge, presumed 
PTSD or chronic pain may mitigate illicit substance use, as self-medication is often seen 
as part of the natural history and sequelae of PTSD and pain.

2.  However, the Board found relief was warranted by upgrading the characterization of 
service to general under honorable conditions based upon the applicant’s post 
achievements and liberal considerations. The Board agreed the applicant continues to 
give by as demonstrated with five deployments to hostile areas since his discharge.  
Therefore, the Board granted partial relief with a general under honorable conditions 
discharge.


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 amending 
the applicant’s DD Form 214 for the period ending 16 April 2003 to show his 
characterization of service as under honorable (general) conditions.

2.  The Board further determined 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 upgrade of applicant’s discharge to 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, 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, United State Code, section 1556 (Ex Parte Communications Prohibited) 
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. AR 635-200, in effect at the time, prescribed policies and procedures for the 
administrative separation of enlisted personnel.
	a.  Paragraph 3-7a (Honorable Discharge) stated 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 the 
Soldier's subsequent honest and faithful service over a greater period outweighed the 
disqualifying entries found in his/her record. It was the pattern of behavior, and not the 
isolated instance, which commanders should consider as the governing factor.

	b.  Paragraph 3-7b (General Discharge) stated a general discharge was a 
separation from the Army under honorable conditions.  When authorized, it was issued 
to a Soldier whose military record was satisfactory but not sufficiently meritorious to 
warrant an honorable discharge.

	c.  Chapter 10 permitted Soldiers to request discharge in lieu of trial by court-martial 
when they had committed an offense or offenses that, under the UCMJ and the MCM, 
included a bad conduct or dishonorable discharge as a punishment. The Soldier could 
submit such a request at any time after court-martial charges were preferred and up to 
the point that the convening authority approved the sentence. Once the separation 
request was approved, an under other than honorable conditions discharge was 
normally furnished, but the discharge authority could direct a general discharge, when 
warranted.

4.  The Manual for Courts-Martial then in effect stated a punitive discharge was one of 
the authorized punishments for violations of UCMJ Articles 112a (Wrongful Use of 
Controlled Substances, to include Marijuana) and 92 (Failure to Obey a Lawful General 
Order or Regulation).

5.  On 3?September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations and mitigating factors when taking action on applications from former 
service members administratively discharged UOTHC and who have been diagnosed 
with PTSD by a competent mental health professional representing a civilian healthcare 
provider in order to determine if it would be appropriate to upgrade the characterization 
of the applicant's service.

6.  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. 

7.  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)	 AR20220008512


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 


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