IN THE CASE OF: 
 
  BOARD DATE: 5 September 2023 
 
  DOCKET NUMBER: AR20230001714 
 
 
APPLICANT REQUESTS: an 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) 

• Self-authored Statement 

• Character Reference letter 

• Official Military Personnel File documents 

• Military Medical Record 

• Civilian Treatment Record 

• Certificate of Achievement 


 
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 he received a discharge UOTHC because he was suffering from a mental health condition and turned to drugs and alcohol to help him cope with the symptoms. He failed multiple urinalyses and was considered absent without leave at times for going to a friend's house after being told not to do so. He had a bad attitude and problem with authority because he did not know how to cope with his feelings, and was not aware that he was suffering from a mental health condition. He admits he deserved the discharge he received, but humbly requests an upgrade because it is haunting him. Upon discharge, he continued with drugs and alcohol and also went to prison for five years. He eventually became sick of his lifestyle and has finally sought help. He completed a drug and alcohol program and is training to become a professional truck driver. All he wants is a second chance at life. 
 
3.  On 15 September 1999, the applicant enlisted in the Regular Army for a period of 4 years. Upon completion of initial entry training, he was assigned to a unit at Fort Hood, TX.  
 
4.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 
 
     a.  On 5 June 2000 for wrongfully using marijuana on or between 13 March 2000 and 11 April 2000. His punishment included reduction from the rank/pay grade of private/E-2 to private/E-1, forfeiture of $502.00 pay per month for two months, 45 days of extra duty, and 45 days of restriction. 
 
     b.  On 2 January 2001 for wrongfully drinking underage on or between 13 October 2000. His punishment included forfeiture of $235.00 pay, 15 days of extra duty, and 15 days of restriction. 
 
     c.  On 24 October 2001 for wrongfully using marijuana on or between 30 July 2001 and 29 August 2001. His punishment included forfeiture of $521.00 pay per month for two months, 45 days of extra duty, and 45 days of restriction. 
 
5.  A DD Form 2624 (Specimen Custody Document – Drug Testing) shows a specimen provided by the applicant on 13 November 2001 tested positive for the principal active ingredient in marijuana. 
 
6.  On 4 December 2001, the applicant received disciplinary counseling twice for failure to be in his appointed place of duty, disobeying a direct order, and disobeying a lawful order on 30 November 2001 and on 1 December 2001. 
 
7.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 21 February 2002, for the following offenses in violation of the UCMJ. 
 
     a.  Charge I, Article 112a: 
 
• Specification 1:  wrongfully used marijuana on or between 13 October 2001 and 13 November 2001. 

• Specification 2:  wrongfully used marijuana on or between 11 September 2001 and 11 October 2001 


 
     b.  Charge II, Article 86:  The Specification:  without authority, failed to go at the time prescribed to his place of duty on or about 1 December 2001. 
 
     c.  Charge III, Article 134:  The Specification:  having been restricted to the limits of his battalion area, by a person authorized to do so, did, on diverse occasions, on or about and between 29 November 2001 and 2 December 2001, break said restriction.  
 
8.  On 15 March 2002, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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 not to submit statements in his own behalf.  
 
9.  The applicant's chain of command recommended approval of his request for discharge with a discharge characterization of UOTHC. 
 
10.  On 8 April 2002, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. He further directed the applicant be reduced to the lowest enlisted grade. 
 
11.  Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirm he was discharged on 7 May 2002, under the authority of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial in the grade of E-1. His service was characterized as UOTHC. He was credited with completing 2 years, 7 months, and 23 days of net active service this period. He did not complete his first full term of service. 
 
12.  In addition to the previously discussed evidence, the applicant provides: 
 
     a.  A character reference letter rendered by a former Soldier who served with the applicant at Fort Hood, TX, who made favorable comments about his character, work ethic, and dedication. He concedes that the applicant made serious mistakes when he turned to alcohol and drugs but believes he has turned his life around and deserves a second chance. 
 
     b.  His military health and dental records. There is no indication that he received a pre-separation medical examination prior to his discharge. 
 
     c.  Records from Union Gospel Mission-Twin Cities records show the applicant engaged in various mental health treatments beginning 1 January 2002 through 30 September 2022. 
 
     d.  A Certificate of Achievement, dated 3 October 2022, shows the applicant successfully completed the Intensive Outpatient Programming offered by NuWay. 
13.  The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. A characterization of UOTHC is authorized and normally considered appropriate. 
 
14.  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. 
 
15.  MEDICAL REVIEW: 
 
    a.  Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. The applicant asserts that PTSD and other mental health mitigate his misconduct.  
    b.  The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory:  
 
• The applicant enlisted in the Regular Army 15 September 1999.  

• The applicant accepted nonjudicial punishment (NJP): 

• On 5 June 2000 for wrongfully using marijuana on or between 13 March 2000 and 11 April 2000.  

• On 2 January 2001 for wrongfully drinking underage on or between 13 October 2000. 

• On 24 October 2001 for wrongfully using marijuana on or between 30 July 2001 and 29 August 2001. 

• On 4 December 2001, the applicant received disciplinary counseling twice for failure to be in his appointed place of duty, disobeying a direct order, and disobeying a lawful order on 30 November 2001 and on 1 December 2001.  

• On 21 February 2002, court-martial charges were preferred against the applicant for: Charge I – specification 1: wrongfully used marijuana on or between 13 October 2001 and 13 November 2001. Specification 2:  wrongfully used marijuana on or between 11 September 2001 and 11 October 2001. Charge II - The Specification:  without authority, failed to go at the time prescribed to his place of duty on or about 1 December 2001. Charge III - The Specification: having been restricted to the limits of his battalion area, by a person authorized to do so, did, on diverse occasions, on or about and between 29 November 2001 and 2 December 2001, break said restriction. 


• On 15 March 2002, the applicant voluntarily requested discharge under AR 635-200, Chapter 10, in lieu of trial by court-martial. It was approved.  

• He was discharged on 7 May 2002 with an UOTHC characterization of service.  


 
    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 149, ABCMR Record of Proceedings (ROP), self-authored statement, character reference letter, military medical documents, civilian treatment records, certificate of achievement, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration.  
 
    d.  The applicant asserts that he was “suffering from a mental health condition” and turned to drugs and alcohol to help cope with the symptoms, and this behavior led to his discharge. The applicant does not clarify in his application what conditions he believes he was experiencing, or what symptoms he thinks contributed to his substance use. There are no electronic health records (EHR) from his time in service to review and he did not provide any medical documentation to support his assertion of mental health concerns during this time. His enlistment medical exam on 1 July 1999 does not report any psychiatric concerns, and during the medical history portion the applicant denies any mental health concerns (depression, difficulty with sleep, excessive worry or nervousness). The applicant was not on any psychiatric profiles. There is no indication that he received a pre-separation medical examination prior to his discharge. A medical record from 16 June 2000 indicates he was seen for intermittent chest pain. An EKG was recommended. He is seen by radiology for ongoing “heart pain” on 26 March 2001 and findings were normal. Symptoms of chest pain or tightness, when no abnormalities are found, could indicate stress, anxiety or panic. His service records do indicate numerous incidents related to controlled substances, however there is no indication that the applicant was referred for substance abuse assessment or treatment.  
 
    e.  Since his discharge, the applicant has engaged in mental health care. The applicant provided records from Union Gospel Mission-Twin Cities. His records show he engaged in various mental health treatments beginning 1 January 2022 through 30 September 2022. Treatments have included group dialectical behavior therapy (DBT) and individual therapy to include EMDR (for trauma) and CBT. Records evidence the applicant experienced childhood trauma. A thorough diagnostic evaluation was included in his supporting documents, completed by a licensed social worker, that has him diagnosed with PTSD. Based on other treatment records, it appears likely that his PTSD stems from childhood abuse. A Certificate of Achievement, dated 3 October 
2022, shows the applicant successfully completed the Intensive Outpatient Programming offered by NuWay. 
    f.  Per the applicant’s VA EHR, he has engaged with the VA 2012 through 2014 for homeless services. There are additional encounters (2) from 2017 and 2019 from the Incarcerated Veteran’s Re-Entry Program Outreach. He was seen in the emergency department in 2023, briefly, before deciding to use other resources to detox from substances.  He is not service connected; however, the characterization of his discharge likely prevents him from accessing a majority of VA benefits. He has been diagnosed with alcohol abuse, amphetamine abuse and lack of housing. Through review of Joint Legacy Viewing, this applicant did have “Community Health Summaries and Documents” available. The applicant’s problem lists across numerous medical facilities include anxiety, generalized anxiety disorder (GAD), methamphetamine dependence in remission, methamphetamine intoxication, nondependent alcohol abuse, history of trauma, IV drug use, and accidental overdose.  
    g.  It is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence outside of self-report to indicate the applicant had a mitigating condition during his time in service. However, the applicant has since been diagnosed with PTSD. Per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 
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 contends he had mitigating conditions (PTSD, “other mental health”).    
    (2)  Did the condition exist, or experience occur during military service? Yes. The applicant does assert a mitigating condition was present during his time in service.  
    (3)  Does the condition or experience actually excuse or mitigate the discharge? Partial. There is insufficient evidence beyond self-report that the applicant was experiencing a mental health condition (or conditions), outside of a likely substance use disorder, at his time of misconduct. However, the applicant has since been diagnosed with PTSD, multiple substance use disorders, and indications of an anxiety disorder. The applicant’s PTSD likely stems from childhood trauma/abuse and therefore was likely present to some degree during his time in service. There is no indication of additional traumatic experiences during his time in service that would have exacerbated this previous mental health concerns. However, there are some markers that his mental health was impacting him during service (the unexplained and consistent chest pains, the sudden increase in substance use). Of note, self-medicating with substances, and avoidance behaviors such as failure to report, are consistent with the natural history and sequalae of PTSD and anxiety related symptoms. Hence, there is a nexus between his 
asserted condition(s) and the misconduct that led to his discharge. But his misconduct alone is not sufficient to establish history of a condition during active service. That said, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient to warrant the board’s consideration.  
 
    h.  It should also be noted that a substance use disorder is not typically a mitigating condition as a stand-alone diagnosis. However, it is concerning that he was not referred to the Army Substance Abuse Program (ASAP) or Substance Use Disorder Clinical Care (SUDCC) for, at minimum, an assessment.  
 
BOARD DISCUSSION: 
 
After reviewing the application, all supporting documents, and the evidence found within the applicant’s military records, the Board found that relief was 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.  
 
     a.  The applicant was charged with commission of an offense (illegal drugs, breaking restriction, failure to report) 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 result in an under other than honorable conditions character of service.  
 
     b.  The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding some evidence of in-service mitigating factors that contributed to the misconduct (partial mitigation). Additionally, the applicant provides certificate that shows he successfully completed an outpatient program, as well as a character reference letter rendered by a former Soldier who served with him and made favorable comments about his character, work ethic, and dedication. Based on a preponderance of evidence, the Board determined that the applicant’s service clearly did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests.  
 
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
xx: xx: xx: GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
: : : DENY APPLICATION 
 
BOARD DETERMINATION/RECOMMENDATION: 
 
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 7 May 2002 showing his character of service as Under Honorable Conditions, General. 
 
• Separation Authority: No Change 

• Separation Code: No Change 

• Reentry Code: No Change 

• Narrative Reason for Separation: No Change 


 
  9/5/2023


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 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. 
 
4.  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. Reentry Code 4 is the appropriate corresponding reentry eligibility code. 
 
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 Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress 
disorder (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, 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//