IN THE CASE OF: 

		BOARD DATE: 25 April 2023

		DOCKET NUMBER: AR20220009138


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to under honorable conditions (general).
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Standard Form 513 (Clinical Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) 
*	Community Hospital medical record

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 his discharge characterization was based on a civil conviction 
for second degree murder. Prior to the incident which resulted in his arrest and 
conviction, he sought help at the mental health clinic at Fort Stewart, GA. Prior to being 
physically attacked and sexually assaulted, he was a good Soldier. The assault drove 
him to heavy alcohol and drug use. He needed and asked for help, but the Army chose 
to discharge him. His life was turned upside down by the incident, to include four suicide 
attempts. He was diagnosed with post-traumatic stress disorder (PTSD) by the 
Veterans Affairs Medical Center in Hampton, VA.

3.  The applicant enlisted in the U.S. Army Reserve on an undetermined date, he 
entered initial active duty for training on 3 October 1984. Following completion of initial 
active duty for training he was awarded military occupational specialty 77F (Petroleum 
Supply Specialist). He was honorably released from active duty and returned to his unit 
on 21 February 1985.


4.  The applicant enlisted in the Regular Army on 24 November 1987 for 3 years and 
served in MOS 77F. The highest grade he held was E-4.

5.  The available record is sparse and contains very limited information.

6.  A Standard Form 513 (Clinical Record), dated 3 April 1989 shows the applicant was 
self-referred to the Army Drug Abuse and Prevention Control Program (ADAPCP) for 
polysubstance abuse and cocaine use. The examining physician noted he had a 
depressed mood with anxiety and was feeling stressed. He was diagnosed with an 
adjustment disorder with depressed mood, drug abuse. A follow-up appointment was 
planned for 6 April 1989.

7.  On 9 April 1990, the applicant was found guilty in the Superior Court, of voluntary 
manslaughter and was sentenced to 10 years confinement.

8. The available record is void of the applicant's separation processing documents. 
However, his DD Form 214 (Certificate of Release or Discharge from Active) shows he 
was discharged on 7 May 1991, under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 14, by reason of civilian 
conviction. He was discharged in the grade of E-1 and his service was characterized as 
UOTHC (Separation Code JKB, Reentry Code 3). He had 2 years, 4 months, and 15 
days of net active service this period with 394 days of lost time. His awards are listed as 
the Army Service Ribbon.

9.  The applicant provides a medical report dated 3 March 2022. The record shows he 
had five prior visits between 3 October 2017 and 15 January 2020. His current 
diagnoses included sexually transmitted disease exposure, PTSD, and Schizophrenia. 

10.  In reaching its determination, the Board can consider the applicant’s petition, his 
arguments and assertions, and his service record in accordance with the published 
equity, injustice, or clemency guidance.

11.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an upgrade of his under other 
than honorable conditions (UOTHC) discharge. He contends he experienced military 
sexual trauma (MST) and had mental health conditions to include PTSD that mitigated 
his misconduct. 
    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 24 November 1987; 2) On 9 April 1990, the 
applicant was found guilty of voluntary manslaughter and was sentenced to 10 years 
confinement; 3) The applicant was discharged on 7 May 1991, Chapter 14-by reason of 
civilian conviction. His service was characterized as UOTHC.
    c.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s military service and medical records. The VA’s Joint 
Legacy Viewer (JLV) and hardcopy civilian medical records were also examined.
    d.  The applicant asserts he was sexually and physically assaulted while on active 
service which resulted in him abusing alcohol and illegal substances. There was an 
available military medical record dated 3 April 1989, which shows the applicant was 
self-referred to the Army Drug Abuse and Prevention Control Program (ADAPCP) for 
polysubstance abuse and cocaine use. The applicant was diagnosed with an 
adjustment disorder with depressed mood, drug abuse. He also provided a copy of a 
civilian medical records dated 3 March 2022. He has been diagnosed with PTSD and 
schizophrenia, but there was no information provided on the date of his reported 
symptoms or if they were related to his experiences in the military. A review of JLV 
provided evidence the applicant has been diagnosed with depression, but he receives 
no service-connected disability. 

	e. 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 his 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 MST and mental 
health conditions to include PTSD that mitigate his misconduct. There was evidence the 
applicant was reporting symptoms of depression and possible substance abuse 
secondary to his diagnosed adjustment disorder while on active service. 

		(2)  Did the condition exist or experience occur during military service?  Yes, the 
applicant reports experiencing MST and other mental health condition to include PTSD 
while on active service. There was evidence the applicant was reporting symptoms of 
depression and possible substance abuse secondary to his diagnosed adjustment 
disorder while on active service. 

		(3) Does the condition experience actually excuse or mitigate the discharge? No, 
there is sufficient evidence the applicant was reporting behavioral health conditions 
such as depression, and he was diagnosed with an adjustment disorder while on active 
service. He also reported being exposed to MST and also being physically assaulted 
while on active service. However, there is no nexus between his reported mental health 
conditions and MST and manslaughter given that: 1) this misconduct is not part of the 
natural history or sequelae of his reported mental health conditions or MST; 2) these 
mental health conditions and MST do not affect one’s ability to distinguish right from 
wrong and act in accordance with the right. However, the applicant contends his mental 
health and experiences resulted in his misconduct, and per the Liberal Consideration 
Policy, his contention is sufficient for consideration.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. 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 
available record is void of the separation processing documents. However, other 
evidence shows the applicant was discharged from active duty due to misconduct -
conviction by civil court. 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 advisor’s finding insufficient evidence of in-service 
mitigating factors to overcome the misconduct. The applicant provided insufficient 
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 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, U.S. Code, 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 14–5 (Conviction by Civil Court) provides that a Soldier may be 
discharged when initially convicted by civil authorities, or when action is taken that is 
tantamount to a finding of guilty, if one of the following conditions is present:

		(1) A punitive discharge authorized for the same or a closely related offense 
under the Manual for Court-Martials, as amended.

		(2) The sentence by civil authorities includes confinement for six months or more, 
without regard to suspension or probation.

4.  On 3?September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRB) and Service Boards for Correction of Military/Naval Records 
(BCM/NR) 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.

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 a 
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.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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.)	AR20220009138


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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