IN THE CASE OF:  
 
  BOARD DATE: 18 July 2023 
 
  DOCKET NUMBER: AR20230001143 
 
 
APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to honorable. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record), 26 September 2022 

• Self-authored letter, 26 September 2022 


 
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, prior to joining the military, he did not drink or smoke. While stationed at Fort Knox, KY he began having knee and back problems due to ruck marches and training. After September 11, while stationed at Fort Lewis, WA he began smoking cigarettes and drinking alcohol. He was peer pressured into drinking and did not know how to stop. He got married and instantly became a dad to his wife’s four-year-old child. He battled his dependency to alcohol which led to his divorce. While getting ready for deployment his wife stole money out of his account and she was cheating on him. He had a daughter with his wife but was not allowed to see her. He made some mistakes due to the circumstances that he was going through. Other mental health is related to his request. (See full statement). 
 
3.  On 11 January 2001, the applicant enlisted in the Regular Army.  
 
4.  His DD Form 458 (Charge Sheet), 26 November 2001, shows the following charges and specifications: 
 
 a.  Charge I: Violation of the UCMJ, Article 86.  
 
 
  (1)  Specification 1: In that [applicant] on or about 2 August 2001, without authority, failed to go at the time prescribed to his appointed place of duty, to wit: Battalion Personnel Action Center at 1230 hours. 
 
  (2)  Specification 2: In that [applicant], on or about 3 August 2001, without authority, failed to go at the time prescribed to his appointed place of duty, to wit: Bobcat Field near 1st Battalion, 5th Infantry Headquarters at 0900 hours. 
 
  (3)  Specification 3: In that [applicant] on or about 6 August 2001, without authority, failed to go at the time prescribed to his appointed place of duty, to wit: Battalion Personnel Action Center at 0550 hours. 
 
  (4)  Specification 4: In that [applicant] on or about 13 August 2001, without authority, failed to go at the time prescribed to his appointed place of duty, to wit: Battalion Personnel Action Center at 0550 hours. 
 
  (5)  Specification 5: In that [applicant] on or about 31 August 2001, without authority, absent himself from his unit to wit: Headquarters and Headquarters Company, 1st Battalion, 5th Infantry, located at Fort Lewis, WA, and did remain so absent until on or about 4 September 2001. 
 
  (6)  Specification 6: In that [applicant] on or about 12 October 2001, without authority, absent himself from his unit to wit: Headquarters and Headquarters Company, 1st Battalion, 5th Infantry, located at Fort Lewis, WA, and did remain so absent until on or about 15 October 2001. 
 
  (7)  Specification 7: In that [applicant] on or about 16 October 2001, without authority, absent himself from his unit to wit: Headquarters and Headquarters Company, 1st Battalion, 5th Infantry, located at Fort Lewis, WA, and did remain so absent until on or about 17 October 2001. 
 
  (8)  Specification 8: In that [applicant] on or about 19 November 2001, without authority, absent himself from his unit to wit: Headquarters and Headquarters Company, 1st Battalion, 5th Infantry, located at Fort Lewis, WA, and did remain so absent until on or about 23 November 2001. 
 
 b.  Charge II: Violation of the UCMJ, Article 87. Specification: In that [applicant] did at or near Fort Lewis, WA, on or about 26 November, through design miss the movement of 1st Battalion, 5th Infantry to Fort Polk, LA, with which he was required in the course of duty to move. 
 
 c.  Charge Ill: Violation of the UCMJ. Article 91. 
 
  (1)  Specification 1: In that [applicant] having received a lawful order from Sergeant M____ A. H____, a noncommissioned officer, then known by him to be a noncommissioned officer, to move into the barracks by 2030 hours, an order which it was his duty to obey, did, at or near Fort Lewis, WA, on or about 6 August 2001, willfully disobey the same. 
 
  (2)  Specification 2: In that [applicant], having received a lawful order from Sergeant M____ A. H_____, a noncommissioned officer, then known by him to be a noncommissioned officer, to return to the barracks by 2200 hours, an order which it was his duty to obey, did, at or near Fort Lewis, WA, on or about 6 August 2001, willfully disobey the same. 
 
  (3)  Specification 3: In that [applicant], at or near Fort Lewis, WA, on or about 6 August 2001, was disrespectful in language and deportment toward Sergeant M____ A. H____, a noncommissioned officer, then known by him to be a noncommissioned officer, who was then in the execution of his office, by saying to him, "Oh hell no," or words to that effect, flinging his arms around and walking and walking away while being spoken to. 
 
5.  On 18 December 2001, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: 
 
 a.  He understood that submitting this request for discharge he acknowledge that he is 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 than honorable 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 in civilian life because of an Under Other Than Honorable Conditions Discharge. He further understood that there is no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he wish 
review of his discharge. He realize that the act of consideration by either board does not imply that my discharge will be upgraded. 
 
 d.  He also understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge. 
 
6.  On 9 January 2002, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Other Than Honorable Conditions Discharge Certificate.  
 
7.  On 6 February 2002, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service under the provisions (UP) of AR 635-200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1.  
 
8.  The applicant was discharged from active duty on 22 February 2002. His DD Form 214 shows he was discharged UP of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with the issuance of an under other than honorable certificate. His DD Form 214 shows: 
 
a.  He completed 10 months, and 9 days of net active service this period.  
 
b.  He was issued the Separation Code “KFS”, and the Re-entry Code “3”. 
 
9.  By regulation (AR 635-200), a member who has committed an offense for which the 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. 
 
10.  There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15-year statute of limitations. 
 
11.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 
 
12.  MEDICAL REVIEW: 
 
a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case.  Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:   
    b.  The applicant is applying to the ABCMR requesting an upgrade of his 22 February 2002 discharge characterized as under other than honorable conditions.   
    c.  The Record of Proceedings details the applicant’s military service and the circumstances of the case.  His DD 214 shows he entered the Regular Army on 11 January 2001 and was discharged on 22 February 2002 under the separation authority provided chapter 10 of AR 635-200, Active Duty Enlisted Administrative Separations (1 November 2000): Discharge in Lieu of Trial by Court-Martial.   
    d.  A Charge Sheet (DD form 458) shows the applicant was charged with 4 specifications of failure to repair, 4 specifications of absence without leave (AWOL), 1 specification of missed movement, and 3 specifications of failure to obey the order of a noncommissioned officer.    
    e.  On 18 December 2001, the applicant voluntarily requested discharge in lieu of trial by court-marital under chapter 10 of AR 635-200.  On 6 February 2002, the Commanding General of I Corps and Fort Lewis approved his discharge with an under other than honorable characterization of service.   
 
    f.  There are no encounters in AHLTA and no clinical diagnoses on his medical problem list in JLV. 
 
    g.  There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violation; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge.  Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge.   
 
    h.  It is the opinion of the ARBA medical advisor that a discharge upgrade is not warranted. 
 
Kurta Questions: 
(1)  Did the applicant have a condition or experience that may excuse or mitigate the discharge?  


NO 
(2)  Did the condition exist or experience occur during military service? 


 N/A 
(3)  Does the condition or experience actually excuse or mitigate the discharge? 


 N/A 
 
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 the provisions of 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 to overcome the misconduct and there no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. 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. 
 
  7/18/2023

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 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.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the 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 appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge 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, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19.   
 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.   
 
3.  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. 
 
4.  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 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. 
 
5.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 
 
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