IN THE CASE OF: 

		BOARD DATE: 14 March 2023

		DOCKET NUMBER: AR20220008750


APPLICANT REQUESTS: reconsideration of his previous request(s) for an upgrade of 
his under other than honorable conditions (UOTHC) discharge to an honorable 
discharge, and to appear before the Board via video/telephone.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Letters from Community Mental Health Center (CMHC) at Cape Fear Valley, 
Fayetteville, NC (two)
*	List of medications
*	Extract from an office visit to CMHC at Cape Fear Valley
*	Letter from Liberty Healthcare Corporation of NC

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 Numbers: AR20150004412 on 3 December 2015 
and AR20210013180 on 14 December 2021.

2.  As a new argument, the applicant states he was a victim of sexual harassment and 
sexual assault which contributed to his misconduct. He forgot to sign out prior to leaving 
his unit because he was young and trying to figure out why this had happened to him. 
He believes his three combat tours combined with the sexual harassment and sexual 
assault caused him to develop Post-Traumatic Stress Disorder (PTSD) and Bipolar 
Disorder. He was afraid to talk about this until his wife convinced him to do so.

3.  Following a period of honorable service in the Regular Army (RA) from 28 November 
1986 until 23 November 1988, the applicant reenlisted in the RA on 23 February 1989 
and was subsequently assigned to a unit located in Darmstadt, Germany. He was 
promoted to sergeant (SGT)/E-5 on 1 November 1989.

4.  The applicant was reported as AWOL on 21 September 1992 and was dropped from 
the rolls and reported as a deserter on 19 October 1992. 
5.  On 5 March 1993, the applicant was apprehended by civilian authorities at Winter 
Haven, FL, for civilian charges of possession of cocaine, attempting to sell, resisting 
arrest, and battery. He was confined in the county jail pending disposition of charges. 
On 13 July 1993, he appeared in court and was sentenced to time served, $900.00 fine, 
and three years of probation. 

6.  On 13 July 1993, the applicant was returned to military control and assigned to 
Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.

7.  A DD Form 458 (Charge Sheet) shows charges were preferred against the applicant 
on 28 July 1993, for violation of the Uniform Code of Military Justice (UCMJ), for being 
AWOL from 21 September 1992 until on or about 13 July 1993.

8.  On 28 July 1993, the applicant voluntarily requested discharge under the provisions 
of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), 
Chapter 10, in lieu of trial by court-martial. He consulted with legal counsel and was 
advised of the basis for the trial by court-martial; the maximum permissible punishment 
authorized under the UCMJ; the possible effects of a UOTHC discharge; and the 
procedures and rights that were available to him.

9.  The applicant's chain of command recommended approval of his request for 
discharge with a discharge characterization of UOTHC.

10.  The separation authority approved the applicant's request for discharge in lieu of 
trial by court-martial, with his service characterized as UOTHC. He further directed the 
applicant be reduced from SGT/E-5 to private/E-1.

11.  The applicant's DD Form 214 confirms he was discharged on 23 September 1993, 
under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial, 
Separation Code KFS and Reentry Code 3. His DD Form 214 shows:

*	he was credited with completing 3 years, 8 months, and 26 days of net active 
service this period with lost time from 21 September 2992 to 12 July 1993
*	he was credited with continuous honorable active service from 23 February 1989 
to 26 May 1992
*	he served in Southwest Asia from 10 June 1991 to 10 September 1991
*	his service was characterized as UOTHC

12.  On 5 March 2015, the applicant petitioned the ABCMR for an upgrade of his 
discharge based upon his contention that he was a great Soldier who was discharged 
just because he did not sign out on leave. He stated it was common for Soldiers to pay 
the person who was on staff duty to sign them out when their leave officially began so 
they could depart a day early. He paid for this service, but the person who was 
scheduled to perform staff duty was replaced by someone else who did not sign him 
out. On 4 December 2015, the Director, ABCMR informed the applicant the Board had 
considered his application under the procedures established by the Secretary of the 
Army and denied his request for relief.

13.  On 29 January 2021, the applicant petitioned the ABCMR for an upgrade of his 
discharge based upon his contention that he suffered from undiagnosed PTSD and 
Bipolar Disorder during his period of service and these conditions were contributing 
factors to his misconduct. He stated he needed an upgraded discharge in order to 
qualify for medical care from the Department of Veterans Affairs. On 11 February 2022, 
the Director, ABCMR informed the applicant the Board had considered his application 
and denied his request for relief.

14.  The applicant provides the following documents in support of his petition:

     a.  Two letters from CMHC at Cape Fear Valley, Fayetteville, NC, dated 7 August 
2018 and 3 September 2020, which show he was receiving psychiatric and individual 
counseling services regarding a diagnosis of PTSD. He reported experiencing extreme 
panic attacks and nightmares approximately 2-3 times per week. The panic attacks had 
been debilitating and had a very severe and adverse impact on his quality of life.

     b.  A list of his prescribed medications as of 13 January 2021.

     c.  An extract from an office visit to CMHC at Cape Fear Valley, which shows in part, 
his primary diagnosis as Bipolar 2 Disorder and his secondary diagnoses as PTSD and 
unspecified sleep wake disorder.

     d.  A letter from Liberty Healthcare Corporation of NC, dated 6 January 2022, 
advising him that Medicaid approved 80 hours of Personal Care Services per month 
until 5 January 2023 or the next assessment completed by NC Medicaid or the 
Independent Assessment Entity designated by NC Medicaid.

15.  The available record is void of and the applicant has not provided evidence 
showing he was a victim of sexual harassment, sexual assault, or was diagnosed with 
any medical condition during his period of service. 

16.  AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by 
court martial. In doing so, he would have waived his opportunity to appear before a 
court-martial and risk a felony conviction. A characterization of UOTHC is authorized 
and normally considered appropriate; however, a member may be awarded an 
honorable or general discharge, if during the current enlistment period of obligated 
service, they have been awarded a personal decoration or if warranted by the particular 
circumstances of a specific case.
17.  By regulation, an applicant is not entitled to a hearing before the Board. Hearings 
may be authorized by a panel of the Board or by the Director of the ABCMR.

18.  Clemency guidance to the 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.

19.  MEDICAL REVIEW:  

    a.  The applicant is applying to the ABCMR requesting an upgrade of his under other 
than honorable conditions (UOTHC) discharge to an honorable discharge. He contends 
that he had experiences and a mental health condition that mitigated his misconduct, 
military sexual trauma (MST) and PTSD and bipolar disorder. 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 28 November 1986; 2) The applicant was found to be AWOL 21 September 
1992 while stationed in Germany; 3) On 5 March 1993, the applicant was apprehended 
by civilian authorities in Florida, for civilian charges of possession of cocaine, attempting 
to sell, resisting arrest, and battery; 4) On 13 July 1993, the applicant was found guilty 
and returned to military control; 5) The applicant was discharged on 23 September 
1993,Chapter 10, in lieu of trial by court-martial. His service was characterized as 
UOTHC; 6) On 5 March 2015, the applicant petitioned the ABCMR for an upgrade of his 
discharge. The Board denied his request.

    b.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s military service records. The VA’s Joint Legacy Viewer 
(JLV) and civilian medical documentation were also examined. The applicant asserts he 
experienced MST, PTSD, and bipolar disorder while on active service, which mitigates 
his misconduct. The applicant did not provide details regarding his experience of MST, 
and there is insufficient evidence the applicant reported behavioral health symptoms 
while on active service. Also, the applicant reported three combat deployments. There is 
evidence he deployed to one time Southwest Asia for three months, and there is limited 
information that he was exposed to direct combat. He did provide a few civilian medical 
documents dated between 2018-2021, which indicated the applicant has been 
diagnosed with bipolar disorder and PTSD. However, there was no information provided 
about the history of the applicant’s symptomatology or connecting the applicant’s mental 
health conditions with his experiences on active service. A review of JLV was void of 
behavioral health documentation, and the applicant does not receive any service-
connected disability. Based on the available information, it is the opinion of the Agency 
BH Advisor that there is insufficient evidence to support the applicant had condition or 
experience that mitigated her misconduct. 

Kurta Questions

		(1)  Did the applicant have a condition or experience that may excuse or mitigate 
the discharge? Yes, the applicant contends he was experiencing symptoms of PTSD 
related to his MST and deployment that contributed to his misconduct. 

		(2)  Did the condition exist or experience occur during military service?  Yes, the 
applicant asserts he experienced MST and PTSD while in active service. 

		(3)  Does the condition or experience actually excuse or mitigate the discharge? 
Partially, the applicant contends he was exposed to MST and potentially traumatic 
events during combat deployments, which resulted with him experiencing PTSD and 
bipolar disorder. Avoidant and erratic behaviors, such as AWOL, are often a natural 
sequalae to PTSD and bipolar. However, the applicant was also found guilty of 
possession of cocaine, attempting to sell, resisting arrest, and battery, not solely 
wrongful usage. There is no nexus between PTSD and bipolar disorder and these types 
of misconduct given that: 1) these types of misconduct are not part of the natural history 
or sequelae of PTSD and bipolar disorder; 2) PTSD and bipolar disorder do not affect 
one’s ability to distinguish right from wrong and act in accordance with the right. 
However, the applicant contends mental health conditions resulted in his misconduct, 
and per the Liberal Consideration Policy, his contention is sufficient for consideration. 

BOARD DISCUSSION:

1.  The Board determined the evidence of record was sufficient to render a fair and 
equitable decision. As a result, a personal appearance hearing is not necessary to 
serve the interest of equity and justice in this case.

2.  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 charged with commission of an 
offense punishable under the UCMJ with a punitive discharge. After being charged, he 
consulted with counsel and requested discharge under the provisions of AR 635-200, 
Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial. The Board considered the medical records, any VA documents provided 
by the applicant and the review and conclusions of the advising official. The Board 
concurred with the medical advisory opinion finding insufficient evidence of in-service 
mitigating factors to overcome the misconduct. While AWOL is a natural sequalae to 
PTSD and bipolar, the applicant was also found guilty of possession of cocaine, 
attempting to sell, resisting arrest, and battery, not solely wrongful usage. There is no 
nexus between PTSD and bipolar disorder and these types of misconduct. The 
applicant provided no evidence of post-service achievements or letters of reference in 
support of a clemency determination. Based on a preponderance of evidence, the 
Board determined that 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 to amend the decision of the ABCMR set forth in Dockets Number 
AR20150004412 on 3 December 2015 and 	AR20210013180 on 14 December 2021

	  
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 three 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 three-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 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 15-185 (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.

4.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the 
separation of enlisted personnel.

	a.  Chapter 10 stated a member who committed an offense or offenses for which the 
authorized punishment included a punitive discharge could, at any time after the 
charges have been preferred, submit a request for discharge for the good of the service 
in lieu of trial by court-martial. Although an honorable or general discharge was 
authorized, a discharge under other than honorable conditions was normally considered 
appropriate. At the time of the applicant's separation the regulation provided for the 
issuance of an UOTHC discharge.

	b.  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.

	c.  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.

	d.  When a Soldier is to be discharged UOTHC, the separation authority would direct 
an immediate reduction to the lowest enlisted grade.

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; TBI; 
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)	AR20220008750


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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