IN THE CASE OF: 
 
  BOARD DATE: 18 July 2023 
 
  DOCKET NUMBER: AR20230001146 
 
 
APPLICANT’S REQUEST:  Upgrade of his dishonorable discharge. Additionally, he requests an appearance before the Board via video/telephone. 
 
APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record) 
 
FACTS: 
 
1.  The applicant states his discharge should be upgraded because he completed two years of active service honorably. He suffered from post-traumatic stress disorder (PTSD) because of one of his battle buddies committing suicide. That incident played a major part in his efforts and duty performance. 
 
2.  On 23 February 2016, the applicant enlisted into the Regular Army for a period of 3 years and 20 weeks. Upon completion of initial entry training, he was assigned to a unit located at Fort Bragg, NC. 
 
3.  On 20 February 2019, the applicant's unit commander rendered a memorandum informing the applicant he was disapproved for award of the Army Good Conduct Medal for his period of active duty service from 22 February 2016 to 22 February 2019, due to his absence without leave, receipt of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), and pending UCMJ actions. 
 
4.  The applicant's General Court-Martial (GCM) Orders are not present in his available record. However, a Statement of Trial Results shows the applicant was arraigned in a GCM forum before a military judge empowered to adjudge a dishonorable discharge. 
 
     a.  The applicant was found guilty of the following specification in violation of the UCMJ: 
 
• on divers occasions between on or about 1 November 2017 and on or about 25 December 2018, unlawfully grab Ms. LP on the arms and wrists with his hands 


• between on or about 5 April 2018 and on or about 6 May 2018, unlawfully grab Ms. LP's chest and shoulders with his hands 

• between on or about 5 April 2018 and on or about 6 May 2018, committing an assault upon Ms. LP by strangling her neck with his hands with a force likely to produce death or grievous bodily harm, to wit strangling her neck with his hands so as to decrease and stop air flow and blood flow 

• on or about 25 August 2018, unlawfully striking Ms. LP in the face and on the arms with his hands and unlawfully grab her on the arms and legs with his hands 

• on or about 25 August 2018, commit an assault upon Ms. LP by strangling her neck with his hands with a force likely to produce death or grievous bodily harm, to wit strangling her neck with his hands so as to decrease and stop air flow and blood flow 


 
     b.  His sentence consisted of confinement for 66 months and a dishonorable discharge. The sentence was adjudged on 25 September 2019. 
 
     c.  Based upon a pretrial agreement, only so much of the sentence as provided for confinement for 18 months and a dishonorable discharge was approved and except for the dishonorable discharge, ordered to be executed. 
 
5.  The applicant was confined by military authorities on 25 September 2019.  
 
6.  On 20 November 2020, the sentence was finally affirmed, the appellate review was completed, and the dishonorable discharge was ordered to be executed. 
 
7.  The applicant was released from confinement on 18 December 2020. 
 
8.  Orders and his DD Form 214 (Certificate of Release or Discharge from Active Duty) show the applicant was discharged on 10 December 2021. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of court-martial. His service was characterized as dishonorable. He was credited with completion of 4 years, 6 months, and 25 days of net active service. He had lost time due to confinement from 25 September 2019 until 17 December 2020. 
 
9.  On 18 December 2022, a member of the ABCMR staff rendered a letter requesting the applicant provide copies of medical documents that support his condition of PTSD. To date, the applicant has not provided a response. 
 
10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a 
conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 
 
11.  Army Regulation 635-200 provides that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed, and the affirmed sentence ordered duly executed. 
 
12.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 
 
13.  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 10 December 2021 dishonorable discharge.  He states:  
“I am requesting my discharge gets up-listed.  Reason is because I completed two years of active service honorably.  I believe I still deserved the time in service to be given back as honorable.  I suffered with PTSD of one of my battle buddies committing suicide.  That played a major part in my effort and duty at work.” 
    c.  The Record of Proceedings details the applicant’s military service and the circumstances of the case.  The DD 214 for the period of service under consideration shows he entered the regular Army on 23 February 2016 and was discharged with a dishonorable characterization of service from the Fort Sill Personnel Control Facility on 10 December 2021 under the separation authority provided in AR 635-200, Active Duty Enlisted Administrative Separations (28 June 2021): Court-Martial (Other).   
    d.  Review of his records in AHLTA show numerous encounters with the family advocacy program concerning possible intimate partner abuse and neglect starting in January 2018.  He was seen in the emergency department for suicidal ideations on 6 August 2018: 
“SM [service member] reported he had been talking to his chaplain who recommended he seek services at behavioral health.  SM stated, ‘I have a jump tomorrow and I don’t feel mentally stable to jump.  I don’t feel safe.’ 
SM elaborated he had ‘a lot of personal stuff going on’ to include difficulties with his wife.  He reported he recently went AWOL [absent without leave] for 2 weeks after learning about a no contact order with his wife.   
Because of going AWOL, SM was not paid and thus was unable to make his car insurance payment.  As a result, he lost ability to drive his truck yesterday until his insurance payments are up to date.  SM reported he participated in PT [physical training] this morning and began vomiting.  Yesterday, he reportedly “broke down crying.” SM stated, ‘I don’t feel like a jump is the best thing.’” 
    e.  Later than month, he was diagnosed with adjustment disorder.   
    f.  He was referred to the Army’s Substance Abuse Disorder Clinical Care (SUDCC) for alcohol abuse in November 2018 after getting in a verbal altercation with other Soldiers in his barracks.   
    g.  At a 25 September 2019 court-marital, the applicant was found guilty of 5 specifications of assault on Ms. L.P.  He was confined by military authorities from 25 September 2019 thru 18 December 2020. 
    h.  While in military confinement, the applicant was diagnosed with major depressive disorder on 14 September 2020.  He was seen once again in November and his third and final visit was on 14 December 2020: 
“24-year-old separated man, Army, whom I last saw on 04 Nov at which time we stopped Wellbutrin XL, which he had already stopped; and we started Zoloft 50 mg a day.  He took Zoloft for about a week, then stopped it for no "particular reason" (says "it worked a little bit").   
He craves no substance.  He has stopped all caffeine.  He is now on no medication.  No barriers to learning.  I have read and agree with support staff documentation.  No change in family history since last visit.   
Mood lately is still "neutral," but also somewhat "happy but I'm not excited"; not sad, not irritable, not anxious, no crying.  He is interest in things: not playing basketball, not drawing; plays board games, reading, chess; listens to music, ping pong, jump rope; throws softball and football; he converses with people.   
Sleep: he is able to fall asleep, able to stay asleep; sleep refreshes; not much daytime napping (whereas at last visit he was taking daytime naps.  He has lost 4 
pounds since last visit.  Energy is "pretty good" across the day   He can concentrate.  He gets no thoughts of death or self-harm.” 
    i.  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? • Use of force or violence to produce bodily injury or death  

• Abuse of a position of trust 

• Disregard by a superior of customary superior-subordinate relationships 

• Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army 

• Deliberate acts or omissions that seriously endanger the health and safety of other persons 





 N/A 
 
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 evidence shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged (assault/sexual assault) offenses. His conviction and discharge were completed in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. 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 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, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Court-martial convictions stand as adjudged or modified by appeal through the judicial process, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 
 
2.  Title 10, USC, Section 1552(b), provides, with respect to courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice (UCMJ), action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The 
Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 
 
3.  Title 10, USC, 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. 
 
4.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the 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. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 
 
5.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 
 
 a.  An honorable discharge was separation with honor.  Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. 
 
 b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 c.  A discharge under other than honorable conditions (UOTHC) is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. 
 
          (1)  An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. 
 
          (2)  When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army.  Examples of factors that may be considered include the following: 
 
 
     d.  A bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 
 
     e.  A dishonorable discharge will be given to a Soldier pursuant only to an approved sentence of a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 
 
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 post-traumatic stress disorder (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; 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. 
 
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, 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. 
 
//NOTHING FOLLOWS//