IN THE CASE OF:    
 
  BOARD DATE:  11 July 2023 
 
  DOCKET NUMBER:  AR20230000272 
 
 
APPLICANT REQUESTS:  Reconsideration of his previous request for upgrade of his under honorable conditions (general) discharge, and a personal appearance before the Board.  
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:   
 
• DD Form 293 (Application for the Review of Discharge), with a self-authored statement dated 21 August 2022 

• DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 December 2009 

• 53 pages of documents many previously considered by the Board, and the following as new evidence:  • Customer satisfaction emails, dated in 2017 (6) 

• previously considered character reference letter with the date changed and a new letter, dated 28 May 2018 

• Truck Driving School Certificate of Graduation, dated 13 August 2018 

• Musical Instrument Donation Appreciation Letters, dated in 2019 (2) 

• Department of Veterans Affairs (VA) Ratings Decision, dated 1 February 2022 

• VA Staff Psychologist letter addressed to the Army Discharge Review Board (ADRB), dated 24 August 2022 





 
 
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 Number AR20160006956 on 26 April 2018.  
 
2.  As a new contention the applicant states:   
 
a.  He served faithfully from 5 March 2008 through 23 December 2009 and was recently diagnosed with 100 percent (%) service-connected post-traumatic stress disorder (PTSD) in January 2022. He never experienced traumas growing up and was a 
happy child with a loving family. He decided to join the military after the 11 September 2001 attacks and initially excelled, moving up the ranks to Private Frist Class (PFC) within a year.  
 
b.  He was introduced to, provided, and pressured to use alcohol by older Soldiers in the barracks. He was assaulted at least three times because of his Arabic decent, leaving him with a lifetime of scars and psychological trauma. He was afraid to report the assaults and racial abuse because most of the individuals were higher ranking and could ruin his career. He continues explaining his experiences as his drinking got out of control leading to conflicts. His room and vehicle were searched, they found a firework and pellet gun. He was ultimately discharged. 
 
c.  He feels that he qualifies for an upgrade under the Kurta memorandum, because he has been diagnosed with PTSD by a VA doctor, his PTSD is service connected, and his PTSD excuses the misconduct that led to his discharge.  
 
3.  On 5 March 2008, the applicant enlisted in the Regular Army for a 3-year and 20-week service obligation. Upon completion of training and award of military occupational specialty 92Y (Unit Supply Specialist), he was assigned to Fort Riley, KS. He attained his highest grade held PFC on 6 March 2009.  
 
4.  A DA Form 3975 (Military Police (MP) Report), shows on 5 September 2005, the applicant was observed by MP traveling at a high rate of speed. A traffic stop was initiated, and the odor of alcohol was detected. He was administered a series of field sobriety tests, which indicated impairment. He voluntarily submitted to a breathalyzer which returned a blood alcohol content (BAC) of 113%. He was processed and later released to his unit.” He was also cited for speeding on post.  
 
5.  On 9 September 2009, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following offenses, on or about 3 June 2009:  
 
• possessing and storing an unregistered privately owned firearm 

• wrongfully retaining or storing an incendiary device for other than the performance of official duties [sworn documents in his service record indicate the device was not a firework] 

• consuming alcohol while under the legal drinking age of 21 

• being drunk and disorderly 

• unlawfully enter another Soldier’s barracks room 

• wrongfully communicating a threat to another Soldier 


 
6.  His punishment included reduction to private/E-2, forfeiture of $784 for two months, 30 days extra and 30 days restriction (suspended for 30 days). 
7.  On 29 September 2009, his previously suspended reduction to E-2 and forfeiture of $784 was imposed due to him willfully disobeying a lawful order from his superior non-commissioned officer (NCO) on or about 26 September 2009.  
 
8.  On 2 October 2009, the applicant accepted NJP under the provisions of Article 15 of the UCMJ, for operating a vehicle while under the influence of alcohol on 5 September 2009. His punishment included reduction to E-1, forfeiture of $700 per month for two months, 45 days extra duty, and 45 days restriction.  
 
9.  On 7 October 2009, the Deputy Commanding General (Support), 1st Infantry Division, Fort Riley, KS, issued the applicant a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence of alcohol on 5 September 2009. He noted the applicant was observed by the MPs while traveling more than the posted speed limit. When questioned by the MPs, the applicant became belligerent. The MP smelled alcohol coming from the applicant's breath and conducted a breathalyzer which resulted in a BAC of 113%. The GOMOR was subsequently placed in his official military personnel files. 
 
10.  The applicant’s service record contains at least four DA Forms 4856 (Developmental Counseling Forms) showing he was counseled on several occasions between 18 October and 14 December 2009, for discreditable conduct that could result in separation, insubordination towards superior NCOs, being disrespectful and disobeying orders, striking another Soldier in the back of the head, for failing to be at his appointed pace of duty, and for failing to report at the prescribed time.  
 
11.  On 19 November 2009, the applicant's commander notified the applicant of his intent to initiate actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for patterns of misconduct. 
 
12.  On 24 November 2009, the applicant consulted with counsel and acknowledged receipt of the commander's contemplated action. He was advised of the basis for the proposed separation action, his available rights, and the effects of waiving those rights. He was afforded the opportunity to submit a statement in his own behalf.  
 
13.  Subsequently, the applicant’s commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, for patterns of misconduct. The chain command recommended approval with a general characterization of service. 
 
14.  The separation authority approved a waiver of further rehabilitative requirements and the recommended separation action with a general discharge. 
 
15.  On 23 December 2009, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct. His service was characterized as under honorable conditions (general), and he was credited with completing 1 year, 9 months, and 19 days of net active service this period.  
 
16.  On 21 May 2011, the ADRB reviewed the applicant’s petition for upgrade of his discharge and change of Reentry Eligibility Code. After careful consideration, the ADRB determined his discharge was proper and equitable and denied his request for relief.  
 
17.  On 26 April 2018, the ABCMR reviewed the applicant’s petition in Docket Number AR20160006956, for upgrade of his service characterization. The Board considered his request and determined that he was properly discharged and denied his request for relief.  
 
18.  The applicant provides 54 pages of documents, many previously considered. As new evidence he provides six customer satisfaction emails, a previously considered character letter, and a new character letter stating that he is a good coworker. Additionally, he provides a VA Rating Decision, which shows he was evaluated at 100% for PTSD on 20 December 2021; and a VA Psychologist letter in support of upgrade of his discharge characterization due to PTSD.  
 
19.  In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance.  
 
20.  MEDICAL REVIEW:   
 
    a.  Background: The applicant is requesting a reconsideration of his previous request for upgrade of his under honorable conditions (general) discharge. The applicant asserts PTSD was a mitigating factor.  
    b.  The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory:  
• The applicant enlisted in RA on 5 March 2008. 

• On 5 September 2005 a DA form 3975 shows he was cited for driving while impaired (alcohol) and speeding. On 2 October 2009, the applicant accepted non judicial punishment (NJP) for this event.  

• The applicant accepted NJP on 9 September 2009 for the following offenses on or about 3 June 2009: possessing and storing an unregistered privately owned firearm, wrongfully retaining or storing an incendiary device for other than the performance of official duties [sworn documents in his service record indicate the device was not a 


firework], consuming alcohol while under the legal drinking age of 21, being drunk and disorderly, unlawfully enter another Soldier’s barracks room, and wrongfully communicating a threat to another Soldier.  

• On 26 September 2009 he willfully disobeyed a lawful order from his superior non-commissioned officer (NCO).  

• On 7 October 2009 the applicant received a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence of alcohol on 5 September 2009.  

• The applicant’s service record contains at least four DA Forms 4856 (Developmental Counseling Forms) showing he was counseled on several occasions between 18 October and 14 December 2009, for discreditable conduct that could result in separation, insubordination towards superior NCOs, being disrespectful and disobeying orders, striking another Soldier in the back of the head, for failing to be at his appointed pace of duty, and for failing to report at the prescribed time.  

• Applicant was discharged on 23 December 2009, under the provisions of AR 635-200, Chapter 14-12b, by reason of pattern of misconduct. His service was characterized as under honorable conditions (general).  

• The applicant has submitted to ADRB and was denied upgrade due to discharge being proper and equitable. On 26 April 2018 he was denied by ABCMR, as his discharge was found to be proper.  


 
c.  Review of Available Records Including Medical: 
The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, his ABCMR Record of Proceedings (ROP), his DD 214, documents from his service record and separation, character references, VA ratings decision, VA staff psychologist letter, appreciation letters, customer satisfaction emails, truck driving certificate, donation appreciation letters, as well as many documents previously considered by the Board.  The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration.  
 
    d.  This applicant contends that while in the Army he was assaulted at least three times because of his Arabic decent, which caused psychological trauma. In addition, he reports being pressured to drink by other soldiers, and his drinking “got out of hand.” He reports he was discharged after a firework and pellet gun were found in his possession, though this is not fully consistent with his record (see supporting documents and above summary). Hence, he is contending these assaults/traumas and PTSD are mitigating factors in his discharge.  
    e.  His service records and electronic health records (EHR) indicate he had some engagement with mental health while active duty. A counseling statement (10 
December 2009) discusses him having struck another soldier in the back of the head and referenced that he had already been sent to anger management approximately one year prior. His Army EHR indicates he was first seen for anger management group on 13 January 2009, after reportedly getting into a fight. He attended the intake/evaluation and all four follow up sessions of the group. He was given a diagnosis of “other interpersonal problems.” After completion of his anger management in February of 2009, he was not seen again until he was command referred to behavioral health on 3 June 2009 for an assessment of potential risk of harm toward others. He was diagnosed with alcohol abuse and adjustment disorder with disturbance of emotions. He was willing to return to care with this provider, which he did once before terminating care mid-June. He was brought back to the clinic for another safety assessment on 5 June 2009 after the explosives and pellet gun were found in his room. He was released again with similar findings. The applicant was seen and assessed by ASAP on 8 June 2009 and was not found to have an alcohol diagnosis. He was recommended to ADAPT though no follow ups are documented. He was seen for his chapter evaluation/mental status exam on 16 September 2009. A copy of the mental status exam form was not in his file or separation packet. Per the note from the evaluation, his diagnosis remained as adjustment disorder with disturbance of emotions.  
    f.  The applicant began engaging with the VA in 2014. The applicant has held numerous diagnoses to include adjustment disorder with mixed anxiety and depressed mood, PTSD and major depressive disorder. The applicant supplied documents stating that he has been service connected for his disabilities (100% for PTSD) with an effective date of December 20, 2021. His EHR reflects conflicting information, and the applicant at times being a poor historian. In his initial mental health appointment with the VA allege a deployment to Iraq, and post-deployment adjustments, yet his service record does not reflect him having deployed. In the early years of care (both in and out of the Army) he was often guarded, untrusting and unwilling to give full details of incidents and events while in therapy. It’s unclear if the conflicting information is intentional or the product of his symptoms and diagnosis. Overall, his EHR reflects that he has been actively engaged in care since 2014, doing individual therapy, group therapy, medication management, and veteran justice outreach (VJO) case management. A letter dated 24 August 2022, from his provider Dr. , PhD supports his discharge upgrade. She argues the nexus between his racially related assaults and PTSD and severe depression though she does not comment on the nexus between his diagnosis and the behaviors he was discharged for.   
    g.  Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is no evidence he received a mitigating condition diagnosis while in the service, though there is sufficient evidence that he has since received a service-connected disability diagnosis (100% for PTSD). Hence, this advisor would contend that several, but not all, of his offenses can be mitigated. 
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 as a mitigating factor.  
 
  (2)  Did the condition exist or experience occur during military service? Yes, the applicant contends a mitigating condition was present during his time in service. 
 
  (3)  Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant contends he was experiencing a mental health condition that mitigated his discharge, and per Liberal Consideration, his contention is sufficient to warrant the board’s consideration. Documentation from his time in service does not support a PTSD diagnosis, however, he was diagnosed with an adjustment disorder with disturbance of emotions. Since his discharge, he has received 100% service connection for PTSD. Some of his misconduct can be associated with mental health concerns secondary to assault, trauma and PTSD. The applicant’s misconduct included several behaviors consistent with the natural history and sequelae of PTSD (avoidance and self-medication as seen through underage drinking, alcohol abuse/drunk and disorderly, driving while under the influence; and increased arousal and reactivity leading to increased threatening behaviors). However, there is no nexus between his asserted mental health condition and behaviors such as processing and storing an unregistered firearm, retaining and storing an incendiary device, or unlawfully entering another soldier’s barracks room. Hence, only three of the six offenses are mitigated. 
 
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.  After reviewing the application and all supporting documents, 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 applicant was discharged from active duty due to Misconduct (possession of unregistered arms, storing incendiary device and illegally consuming alcohol). The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board reviewed and was persuaded by the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The 
applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature 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 
 
xx: xx: xx: 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 Docket Number  
AR20160006956 on 26 April 2018. 
 
  7/11/2023

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 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.  
 
2.  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 ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires.  
 
3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.   
 
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.  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 discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 (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 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, 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//