IN THE CASE OF: 
BOARD DATE: 30 August 2023 
DOCKET NUMBER: AR20230000922 


APPLICANT REQUESTS: 

•reconsideration of his previous request to change his character of service fromunder other than honorable conditions to under honorable conditions (general)

•a change of his narrative reason for separation to “secretarial authority” and thecorresponding Separation Program Designator (SPD) code

•a personal appearance before the board



APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•Self-authored statement, 26 April 2022

•Separation packet

•Several Duty Status Change Roster

•Medical Exam for Separation memorandum, 19 May 1998

•DD Form 458 (Charge Sheet), 19 May 1998

•DA Form 2-1 (Personnel Qualification Record)

•DD Form 214 (Certificate of Release or Discharge from Active Duty

•NPRC letter, 10 July 2019

•ABCMR Record of Proceedings, AR20190013023, 21 April 2022



FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20190013023 on 21 April 2022.

2.The applicant provides new argument or evidence not previously considered by theBoard.

3.The applicant states, he would like his narrative reason for separation to show“secretarial authority”. He is also asking for his review to be based on the Kennedy v.McCarthy Case Number 16-CV-02010. His request is related to other mental healthissues.














4.On 4 September 1996, the applicant enlisted in the Regular Army. He completedtraining and was awarded military occupational specialty (MOS) 13B, CannonCrewman.5.On 16 January 1997, the applicant was assigned to Headquarter HeadquartersBattery 4th Battalion, 1st Field Artillery, in Fort Riley, KS.6.On 6 April 1998, his duty status changed from present for duty to absent withoutleave (AWOL). On 6 May 1998, his duty status changed from AWOL to dropped fromthe rolls (DFR).7.On 18 May 1998, the applicant was returned to military control.8.His DD Form 458 (Charge Sheet), 20 May 1998, shows court-martial charges werepreferred against him for one specification of being AWOL from 6 April to 18 May 1998.9.A Medical Examination for Separation Statement of Option, completed on 20 March1984, shows, in part the applicant declined a separation medical.10.On 20 May 1998, the applicant consulted with legal counsel and was advised ofthe basis for his contemplated trial by court-martial, the maximum permissiblepunishment authorized under the Uniform Code of Military Justice, the possible effectsof an Under Other Than Honorable Conditions Discharge if this request is approved,and of the procedures and rights available to him. Following this consultation, theapplicant requested discharge under the provision of Army Regulation (AR) 635-200(Personnel Separations – Enlisted Personnel), chapter 10. In his request, heacknowledged:a.He understood that submitting this request for discharge he acknowledge that heis guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. 

b.He had been advised and understand the possible effects of an under other thanhonorable discharge. As a result of the issuance of such a discharge he will be deprived of many or all Army benefits that he may be ineligible for many, or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a veteran under both state and federal law. 

c.He also understood that he may expect to encounter substantial prejudice incivilian life because of an Under Other than Honorable Discharge. He further understood that there is no automatic upgrading nor review by any Government agency of a less that honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he wishes review of his discharge. He realizes that the act of consideration by either board does not imply that his discharge will be upgraded. 

d.He also understood that he may, up until the date the discharge authorityapproves his discharge, withdraw his acceptance of this discharge. 

11.On 13 August 1998, the immediate and intermediate commanders recommendedapproval of the applicant's request for discharge and the issuance of an Other ThanHonorable Conditions Discharge Certificate.

12.On 17 August 1998, consistent with the chain of command recommendations, theseparation authority approved the applicant's elimination from the service UP ofAR 635-200, Chapter 10 and ordered the issuance of an Other Than HonorableConditions Discharge Certificate and the applicant's reduction to private/E-1.

13.The applicant was discharged from active duty on 11 September 1998 UP of AR635-200, chapter 10, for the good of the service in lieu of court-martial, with theissuance of an under other than honorable certificate. His DD Form 214 shows:

a.He was awarded or authorized the Army Service Ribbon, Expert QualificationBadge with Grenade Bar, and Marksman Qualification Badge with Rifle Bar. 

b.He was issued separation code “KFS” and reentry code “3”.

c.He has lost time from 6 April 1998 to 17 May 1998.

14.On 21 April 2022, in ABCMR Docket Number AR20190013023, the Board deniedhis request for an upgrade of his discharge.

15.The following guidance applies:

a.By regulation (AR 635-200), a member who has committed an offense for whichthe authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 

b.Kennedy v. Mccarthy Settlement - A lawsuit was filed alleging that since the startof military operations in Iraq and Afghanistan, the Army discharged thousands of Soldiers with Other Than Honorable ("OTH") or General (Under Honorable Conditions) ("GEN") statuses due to misconduct attributable to post-traumatic stress disorder ("PTSD"), traumatic brain injury ("TBI"), military sexual trauma ("MST"), and other behavioral health conditions ("OBH").  Furthermore, the lawsuit alleges that veterans who experienced PTSD, TBI, MST, or OBH in service and  received OTH and GEN discharges were systematically denied status upgrades by the Army Discharge Review Board ("ADRB"). The Court certified a class in this civil action (the “Settlement Class”) defined as "Members and former members of the Army, Army Reserve, and Army National Guard who served during the Iraq and Afghanistan era - the period between October 7, 2001, to April 26, 2021 (the Effective Date of Settlement). 

16.In reaching its determination, the Board can consider the applicant’s petition andhis service record in accordance with the published equity, injustice, or clemencydetermination guidance.


17.MEDICAL REVIEW:

a.The applicant is applying to the ABCMR requesting reconsideration of his previousrequest to change his character of service from under other than honorable conditions to under honorable conditions (general) a change of his narrative reason for separation to “secretarial authority” and the corresponding Separation Program Designator (SPD) code. He contends he had mental health condition that mitigated his misconduct.  

b.The specific facts and circumstances of the case can be found in the ABCMRRecord of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 4 September 1996; 2) On 20 May 1998, court-martial charges were preferred against the applicant for being AWOL from 6 April -18 May 1998; 3) The applicant was discharged on 11 September 1998, Chapter 10, for the good of the service in lieu of court-martial. His service was characterized as UOTHC. 
c.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional civilian medical records were provided by applicant. 
d.On his application, the applicant noted other mental health conditions were relatedto his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. In previous applications, he described injuring his back while on active service and family stressors and experiencing depression in response. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV was void of any medical documentation. The applicant receives no service-connected disability. The applicant did not provide any civilian medical documentation indicating he has been diagnosed with a mental health condition.  
e.Based on the available information, it is the opinion of the Agency BH Advisor thatthere 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 thedischarge? Yes, the applicant contends he was experiencing a mental health condition that contributed to his misconduct.  
(2)Did the condition exist or experience occur during military service?  Yes, theapplicant reports experiencing a mental health condition while on active service. 
(3)Does the condition experience actually excuse or mitigate the discharge? No,there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. The applicant did go AWOL which can be a sequalae to some mental health conditions, but this is not sufficient to establish a history of a condition during active service.  However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 


BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted. The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive and standard review based on law, policyand regulation, and published Department of Defense guidance for liberal and clemencydeterminations requests for upgrade of his characterization of service.  Upon review ofthe applicant’s petition, available military records and medical review, the Boardconcurred with the advising official finding insufficient evidence to support the applicanthad condition or experience that mitigated his misconduct. The Board noted, theapplicant noted other mental health conditions were related to his request, as acontributing and mitigating factor in the circumstances that resulted in his separation. Inprevious applications, he described injuring his back while on active service and familystressors and experiencing depression in response. However, the Board found noindication the applicant reported mental health symptoms while on active service. Areview of JLV was void of any medical documentation.

2.The Board noted, the applicant provided insufficient evidence of post-serviceachievements or character letters of support that would attest to his honorable conductthat might have mitigated the discharge characterization. The Board determined that thenarrative reason and separation code was not in error or unjust. However, based on thefacts and circumstances, the Board agreed the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to general under honorable conditions discharge.  Therefore, the Board determined reversal of the previous Board decision is not warranted and denied relief. 

3.The applicant’s request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.


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 Board found 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 AR20190013023 on 21 April 2022. 




Microsoft Office Signature Line...
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.Army Regulation 635-200 (Personnel Separations) sets forth the basic authority forthe separation of enlisted personnel. Chapter 10 provides that a member who hascommitted an offense or offenses for which the authorized punishment includes apunitive discharge may submit a request for discharge for the good of the service in lieuof trial by court-martial. The request may be submitted at any time after charges havebeen preferred and must include the individual's admission of guilt. A discharge underother than honorable conditions is normally appropriate for a Soldier who is dischargedin lieu of trial by court-martial. However, the separation authority may direct a generaldischarge if such is merited by the Soldier's overall record during the current enlistment.When a Soldier is to be discharged under other than honorable conditions, theseparation authority will direct an immediate reduction to the lowest enlisted grade perArmy Regulation 600–8–19.
a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.  

2.Army Regulation 635-200 (Active Duty Enlisted Administrative Separations),currently in effect, provides, in Chapter 15 (Secretarial Plenary Authority), thatSeparation under this chapter is the prerogative of SECARMY. Secretarial plenaryseparation authority is exercised sparingly and used when no other provision of thisregulation applies. Separation under this chapter is limited to cases where the earlyseparation of a Soldier is clearly in the best interest of the Army. Separations under thischapter are effective only if approved in writing by SECARMY or the Secretary’sapproved designee as announced in updated memoranda.

3.On 3 September 2014, the Secretary of Defense directed the Service DischargeReview Boards (DRBs) and Service Boards for Correction of Military/Naval Records(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medicalconsiderations, and mitigating factors, when taking action on applications from formerservice members administratively discharged under other than honorable conditions,and who have been diagnosed with PTSD by a competent mental health professionalrepresenting a civilian healthcare provider in order to determine if it would beappropriate to upgrade the characterization of the applicant's service.

4.  On 24 February 2016, the Acting Principal Deputy Under Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to waive the imposition of the statute of limitation for service members requesting discharge upgrades related to PTSD or TBI. Additionally, cases previously considered by either the DRBs, BCMRS, or BCNR without the benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 
 
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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 
 
6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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 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. 
 
7.Kennedy v. Mccarthy Settlement - A lawsuit was filed alleging that since the start ofmilitary operations in Iraq and Afghanistan, the Army discharged thousands of Soldierswith Other Than Honorable ("OTH") or General (Under Honorable Conditions) ("GEN")statuses due to misconduct attributable to post-traumatic stress disorder ("PTSD"),traumatic brain injury ("TBI"), military sexual trauma ("MST"), and other behavioralhealth conditions ("OBH").  Furthermore, the lawsuit alleges that veterans whoexperienced PTSD, TBI, MST, or OBH in service and  received OTH and GENdischarges were systematically denied status upgrades by the Army Discharge ReviewBoard ("ADRB"). The Army has agreed to settle the lawsuit while denying theseallegations. The Court certified a class in this civil action (the “Settlement Class”)defined as "Members and former members of the Army, Army Reserve, and ArmyNational Guard who served during the Iraq and Afghanistan era - the period betweenOctober 7, 2001, to April 26, 2021 (the Effective Date of Settlement) – who

•were discharged with a less-than-Honorable service characterization (thisincludes GEN and OTH discharges from the Army, Army Reserve, and ArmyNational Guard, but not Bad Conduct or Dishonorable discharges)

•have not received discharge upgrades to Honorable; and

•have diagnoses of PTSD or PTSD-related conditions or records documentingone or more symptoms of PTSD or PTSD-related conditions at the time ofdischarge attributable to their military service under the Hagel Memo standardsof liberal and special consideration."



8.Section 1556 of Title 10, United States Code, requires the Secretary of the Army toensure that an applicant seeking corrective action by the Army Review Boards Agency(ARBA) be provided with a copy of any correspondence and communications (includingsummaries of verbal communications) to or from the Agency with anyone outside theAgency that directly pertains to or has material effect on the applicant's case, except asauthorized by statute. ARBA medical advisory opinions and reviews are authored byARBA civilian and military medical and behavioral health professionals and aretherefore internal agency work product. Accordingly, ARBA does not routinely providecopies of ARBA Medical Office recommendations, opinions (including advisoryopinions), and reviews to Army Board for Correction of Military Records applicants(and/or their counsel) prior to adjudication.

9.Army Regulation 15-185 (ABCMR), paragraph 2-11 states applicant's do not have aright to a hearing before the ABCMR. The Director may grant a formal hearingwhenever justice requires.
//NOTHING FOLLOWS//