IN THE CASE OF:  
 
  BOARD DATE: 5 September 2023 
 
  DOCKET NUMBER: AR20230001969 
 
 
APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.  
 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 

• Self-authored Statement 

• Request for Early Departure Memorandum 

• Character reference letters (six) 


 
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: 
 
a.  He was denied Department of Veterans Affairs education benefits because of his discharge UOTHC. He made mistakes that he regrets to this day. However, he experienced traumatic events that caused his misconduct. During a training exercise at Fort Irwin, CA, he witnessed a fellow Soldier misuse a tool and amputate his fingers. Fifteen minutes later, the applicant blacked out and started having seizures so, they sent him back to Fort Hood, Texas. He was seen by a doctor and although he was not physically injured, he was under a lot of stress because he did not understand what was happening to his body and he was diagnosed with epilepsy. This resulted in losing his driver’s license. 
 
b.  As he was dealing with this, his friend committed suicide by shooting himself in the head. After seeing that, he was never the same and his stress worsened. No one offered him counseling or a mental health evaluation following this incident and he did 
not think anyone cared about how it affected him. He became depressed and even felt suicidal at times because there was no one he could talk to about his issues. He felt confined and needed to be free so, he went absent without leave (AWOL). Things would have been different if his leadership had given him the help he needed. There are a lot of Soldiers who were in similar situations who took their own lives, and he could have been one of them. 
 
3.  On 14 September 1999, the applicant enlisted in the Regular Army for a period of 3 years. Upon completion of initial entry training, he was assigned to a unit at Fort Hood, TX.  
 
4.  Changes in the applicant's duty status were reported as follows on: 
 
• 3 November 2000 - from Present for Duty (PDY) to AWOL 

• 3 December 2000 - from AWOL to Dropped from Rolls (DFR) 

• 16 December 2000 - from DFR to PDY/Returned to Military Control 


 
5.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 22 December 2000, for violation of Article 86 of the Uniform Code of Military Justice (UCMJ). Specifically, for being AWOL from on or about 3 November 2000 until on or about 16 December 2000. 
 
6.  On 22 December 2000, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 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, and he declined the opportunity to have a physical evaluation prior to separation.  
 
7.  On 20 September 2001, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial. He further directed the applicant be reduced to the lowest enlisted grade and issued an UOTHC Discharge Certificate. 
 
8.  Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirm he was discharged on 10 October 2001 under the authority of AR 635-200, Chapter 10, in lieu of trial by court-martial in the rank/grade of Private/E-1. His service was characterized as UOTHC. He was credited with completing 1 year, 11 months, and 14 days of net active service this period. He had time lost due to AWOL from 3 November 2000 to 15 December 2000. He did not complete his first full term of service. 
 
9.  On 3 April 2023, the applicant was asked to provide medical documents that support his mental health issue. He was afforded a 30-day suspense; however, he did not respond. 
 
10.  The applicant provides: 
 
     a.  A memorandum, dated 5 August 2000, that shows a request was submitted for him to depart early from California to Fort Hood, Texas due to epilepsy. 
 
     b.  Six letters of support rendered by his mother, friends, and coworkers who made favorable comments about his character, work ethic, dedication, and contributions to his community.  
 
11.  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 AR 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. 
 
12.  By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. 
 
13.  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. 
 
14.  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 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 October 2001 discharge characterized as under other than honorable conditions.  He claims that while in the Army, he was exposed to several traumatic events for which he should have gotten counseling for but never did.   He states in part: 
“I just seen my friend blow his brains away.  After that, I was feeling under a lot of distress. 
So, after this I was a different person and didn't feel like myself.  My sergeants did get me help; they didn't really care.  I was really depressed at that time and even felt suicidal at times because it was really no one I could talk to about my issues.  My friend was dead and all my other friends were in different states and countries.  
It was a difficult time, and after that is when I went AWOL [absent without leave], I could not take it no I had to go I felt so confined and needed to feel free, I just left.  I was stressed, depressed, and felt suicidal.  I wish I would have gone about it a different way, but I didn't because that is way, I handled stressed I just ran away.” 
    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 14 September 1999 and was discharged on 10 October 2001 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.  The DD 214 shows lost time under 10 USC § 972 from 3 November 2000 thru 15 December 2000 (43 days). 
    d.  No medical documentation was submitted with the application. 
    e.  A Charge Sheet (DD form 458) shows the applicant was charged with AWOL from 3 November 2000 thru 16 December 2000.   
    f.  On 22 December 2000, the applicant voluntarily requested discharge in lieu of trial by court-marital under chapter 10 of AR 635-200.   
    g.  The commander of the Personnel and Support Battalion at Fort Sill, Oklahoma approved his request 10 months later, on 20 September 2001.  He directed the applicant be discharged with an under other than honorable characterization of service and be reduced in rank to Private E1.   
 
    h.  There are no encounters in AHLTA and no clinical encounters in JLV. 
 
    i.  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 single UCMJ violation and thereby warrant consideration of an upgrade under liberal consideration guidelines. 
 
    j.  However, consideration for an upgrade is recommended to the Board based in the interest of fairness for what appears to have been an unduly harsh characterization of service for the junior enlisted Soldier’s single infraction; the lack of derogatory 
information both before his single period of AWOL or during the 10 months after he requested discharge; and due to the length of elapsed time since his discharge. 
 
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. The applicant was charged with commission of an offense (AWOL) 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. The Board noted that the applicant’s AWOL was relatively short and while his discharge was not improper, it was relatively harsh. He was a junior Soldier with one single infraction and other derogatory information both before his single period of AWOL or during the 10 months after he requested discharge. 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 
 
: : : GRANT FULL RELIEF 
 
xx: xx: xx: 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 10 October 2001 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 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. 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. 
 
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.  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. 
 
6.  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. 
 
7.  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//