IN THE CASE OF:  
 
  BOARD DATE: 15 August 2023 
 
  DOCKET NUMBER: AR20230001101 
 
 
APPLICANT REQUESTS:  Upgrade of his under other than honorable conditions (UOTHC) discharge. 
 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

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


 
FACTS: 
 
1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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, in effect, he fulfilled his contractual enlistment obligation of 3 years and 28 weeks [4 months]. As a result of the "Stop Loss" policy, he served a total of 3 years, 8 months, and 14 days; which is 4 months and 4 days beyond his contractual agreement. He served in Iraq from 24 October 2007 until 5 December 2008. During his period of Stop Loss, his previously dormant symptoms of post-traumatic stress disorder (PTSD) that were caused by his war experiences and witnessing casualties emerged and resulted in the misconduct culminated in his separation. Following his discharge, he continued to serve the military as a civilian fitness recreational assistant and sports field maintenance tractor operator for the Morale, Welfare, and Recreational office at Vilseck and Grafenwoehr, Germany and Fort Bragg, NC. He is currently a commercial tractor trailer operator. 
 
3.  On 16 August 2006, the applicant enlisted in the Regular Army for a period of 3 years and 28 weeks. Upon completion of initial entry training, he was assigned to a unit at Fort Stewart, GA.  
 
4.  He served in Iraq from 24 October 2007 through 5 December 2008. He was promoted to the rank/grade of specialist/E-4 on 1 March 2008. 
 
5.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 17 December 2009, in part, for the following violations of Article 134 of the Uniform Code of Military Justice (UCMJ) at or near Fort Stewart, GA: 
 
• Specification 1:  On divers occasions, between on or about 8 July 2009 and on or about 8 December 2009, wrongfully made comments to members of his battalion that he would engage in acts of violence against members of his unit 

• Specification 2:  On divers occasions, between on or about 8 July 2009 and on or about 8 December 2009, distribute to Soldiers in his unit original songs wrongfully threatening acts of violence against members of his unit 

• Specification 3:  On divers occasions, wrongfully communicated to another Soldier that he "would go on a rampage" or words to that effect 


 
6.  Additional court-martial charges were preferred against the applicant on 4 February 2010, in part, for the following violations of Article 134, UCMJ: 
 
• Specification 1:  At or near Arlington, VA, on or about 16 July 2009, wrongfully communicated to Colonel TB a threat that he was going to shoot Soldiers in the rank of sergeant first class and above if he deployed with his unit to Iraq, or words to that effect 

• Specification 2:  At or near Fort Stewart, GA, on divers occasions between on or about 1 July 2009 and on or about 11 December 2009, wrongfully communicate to another Soldier a threat that he would shoot Lieutenant Colonel GS if he deployed with his unit to Iraq, or words to that effect 


 
7.  An investigation was conducted and concluded there was enough evidence to substantiate the charges. The Investigating Officer recommended the case be referred to trial by Special Court-Martial. 
 
8.  On 26 March 2010, the Staff Judge Advocate (SJA) for Headquarters, 1st Armored Division and U.S. Division-Center recommended the case be referred to trial by General Court-Martial. 
 
9.  On 28 March 2010, the General Court-Martial Convening Authority (GCMA) concurred with the SJA's recommendation and referred the case for trial by General Court-Martial. 
 
10.  On 30 March 2010, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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. He elected to 
submit a statement in his own behalf. In his statement, he asked that his positive record of service be taken into consideration when determining his fate. He explained that during his past four months of incarceration he had been reading biblical scriptures and had a new outlook on life. He wanted to give his family the best possible life and continue to serve the Lord, which he could not do from a jail cell. He was remorseful for his misconduct, but it was the result being so close to his expiration term of service (ETS) date when he was told he would have to remain in the Army and deploy to Iraq again due to the Stop Loss policy. 
 
11.  The applicant's Defense Counsel rendered a memorandum wherein he asked the GCMA to consider directing the applicant receive a under honorable conditions (general) discharge based upon his years of honorable service, his dedication to duty, courage and honorable service in a deployed environment, and the fact that he had never been accused of committing any acts of violence.  
 
     a.  It was only upon being informed that he would be subject to remaining on active duty beyond his ETS date and redeploying to Iraq that he had any problems with the Army.  
 
     b.  Counsel contended that some of the threats the applicant allegedly communicated were a means of artistic expression in his attempt to express his feelings of frustration in the lyrics of a rap song. His lyrics, although crude to some, were representative of much of the music from that genre. 
 
     c.  Since returning from Iraq, the applicant experienced significant trouble readjusting, a variety of pressing personal and family issues, the serious illness of his father, and a difficult separation and custody battle with his wife. These personal issues were compounded by anxiety disorder, depression, and PTSD. He was diagnosed with the former two conditions by Army doctors at Winn Army Community Hospital on Fort Stewart, and civilian professionals had since diagnosed PTSD and the need for more testing for traumatic brain injury (TBI). These conditions played a role in the behavior that led to the charges pending against him. He needs psychological care, not jail time. 
 
12.  On 16 April 2010, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial. He directed the applicant be reduced to the lowest enlisted grade and issued a DD Form 794A (UOTHC Discharge Certificate). 
 
13.  Orders and the applicant's DD Form 214 confirm he was reduced to the rank/grade of private/E-1 and discharged on 29 April 2010, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial with Separation Program Designator (SPD) code "KFS." He was credited with completing 3 years, 8 months, and 14 days of net active service this period. He had not time lost. 
 
     a.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized the: Army Commendation Medal, Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with Campaign Star, Army Service Ribbon, Overseas Service Ribbon 
 
     b.  Item 18 (Remarks) shows he: was retained in service 72 days for the convenience of the government; served in Iraq from 24 October 2007 until 5 December 2008; served in Kuwait from 27 February 2010 until 20 April 2010; completed his first full term of service. 
 
14.  The applicant petitioned the Army Discharge Review Board (ADRB) for upgrade of his discharge. On 15 September 2017, he was informed that after careful review, the ADRB determined he was properly and equitably discharged. Accordingly, his request was denied. 
 
15.  Army Regulation 635-200 states a Chapter 10 discharge is a voluntary request for discharge in-lieu of trial by court-martial. In doing so, the applicant 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. 
 
16.  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 PTSD that mitigated his misconduct.  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 16 August 2006; 2) He served in Iraq from 24 October 2007-5 December 2008; 3) Court-martial charges were preferred against the applicant on 17 December 2009  for the following violations of Article 134: A) making comments that he would engage in acts of violence against members of his unit; B) distributing to Soldiers in his unit original songs threatening acts of violence against members of his unit; C) communicating to another Soldier that he "would go on a rampage. Additional court-martial charges were preferred against the applicant on 4 February 2010 for the following violations of Article 134: A) communicating to Colonel TB a threat that he was going to shoot Soldiers in the rank of sergeant first class and above if he deployed with his unit to Iraq; B) communicating a threat that he would shoot Lieutenant Colonel GS if he deployed with his unit to Iraq; 4) On 30 March 2010, the applicant voluntarily requested, Chapter 10, in lieu of trial by court-martial; 5) The applicant was discharged on 29 April 2010, Chapter 10, in lieu of trial by court-martial with Separation Program Designator (SPD) code "KFS. Also, he received an UOTHC nature of service; 6) The applicant petitioned the Army Discharge 
Review Board (ADRB) for an upgrade of his discharge. On 15 September 2017, his request was denied. 
    b.  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) was also reviewed. No additional documentation was provided by the applicant. 
    c.  The applicant asserts that having to extend his enlistment as a result of “Stop Loss” policy, his “previously dormant symptoms of PTSD that were caused by his war experiences emerged” and were mitigating factors in his misconduct. There was evidence the applicant was initially seen by behavioral health services on 17 July 2009 after reporting the Emergency Department. The applicant stated he was referred by his NCO after an “anger outburst” towards an NCO during a field training. He reported problems with stress and anger related to likely being extended in his military service. He also reported PTSD symptoms and family stressors. He was referred to psychiatry, individual, and group therapy, and his diagnosis was deferred. He was seen again at behavioral health 24 July 2009. He again reported anger management problems and thoughts of hurting others. He was on “buddy watch” prior to the appointment, and he was recommended to be removed and attend group and individual therapy. He was evaluated again on 20 August 2009 due to his contact with the Pentagon and Congress. It was recommended by the Pentagon the applicant have weapons removed and be evaluated due to the possibility of his danger to command.  The applicant was again diagnosed with adjustment disorder with disturbance of emotions and conduct. On 18 September 2009, he declined any further psychotherapy. He was seen by psychiatry on 22 September 2009, and he again reported difficulty with anger, and he was again diagnosed with adjustment disorder with disturbance of emotions and conduct and prescribed psychiatric medication.  
    d.  The was evaluated on 12 November 2009 for a predeployment assessment. The applicant reported not taking his previously prescribed psychiatric medication. He admitted homicidal ideation and dreams of killing his commander. He did report some anxiety and depression symptoms, but he was not found to be reporting PTSD symptoms. He was referred back to behavioral health to be cleared to deploy. On 07 December 2009, he was found fit to deploy with a waiver due to his repeated threats towards his chain of command. He was seen on 09 December 2009, because he “was sent by IG to have med ordered for me.” Since the applicant had not previously taken his medication and was scheduled to deploy in a week, he was not prescribed psychiatric medication at that time for safety reasons. On 25 February 20010, he was command directed to behavioral health for a Mental Status Exam as the applicant was seeking separation from the Army as a conscientious objector. He was found to not endorse symptoms of TBI, PTSD, or an unfitting psychiatric condition and was cleared 
for any administrative actions deemed appropriate by command. On 26 February 2010, while in pretrial confinement, the applicant was evaluated by a military psychiatrist via a phone call. The applicant stated he had started psychiatric medication four days prior, and he was reporting symptoms of depression and anxiety. He was diagnosed with depression.  
    e.  In the legal documents related to the applicant’s trial, he was evaluated by a civilian psychologist outside the military system of car. The date of his report was 28 March 2010, and he was diagnosed with PTSD and major depressive disorder. A review of JLV did not provide any evidence the applicant has been diagnosed with a mental health disorder, and he 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 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 symptoms of PTSD related to his combat experiences that contributed to his misconduct. He also was diagnosed by a civilian psychologist with PTSD. 
    (2)  Did the condition exist or experience occur during military service?  Yes, the applicant asserts he experienced PTSD while in active service.  
    (3)  Does the condition or experience actually excuse or mitigate the discharge? No, the applicant contends he was experiencing PTSD, which mitigates his misconduct of repetitive threats to harm or kill his fellow Soldiers and Command. The applicant was repeatedly diagnosed with an adjustment disorder while on active service, and he cleared for administrative proceedings from a behavioral health perspective. There is sufficient evidence the applicant was experiencing stress related to his divorce, his extension of enlistment, and upcoming deployment. However, there is no nexus between his mental health conditions or PTSD and repeated threat to harm or kill others in his unit. Therefore, the applicant had repeatdly been found to be mentally sound and not diagnosed with a condition that would impact his ability to understand the difference between right and wrong and act in accordance with the right.  
BOARD DISCUSSION: 
 
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 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 AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. The Board reviewed and was persuaded by the medical advisory opinion finding insufficient evidence of in-service mitigating factors that contributed to his 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 for correction of the records of the individual concerned. 
 
  8/15/2023

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, 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.  
 
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 was to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 
 
5.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "KFS" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial.  
 
6.  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. 
 
7.  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. 
 
8.  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//