IN THE CASE OF:  
 
  BOARD DATE: 12 September 2023 
 
  DOCKET NUMBER: AR20230002329 
 
 
APPLICANT REQUESTS:  in effect, an upgrade of his under other than honorable conditions (UOTHC) characterization of service. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 
 
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 he was told he could request a change in status after six months. He had a lot of family members passing away, and his mother was placed on oxygen which made him mentally unstable for combat. 
 
3.  The applicant enlisted in the Regular Army on 5 July 2001 for a 3-year period. He reenlisted on 21 December 2004. The highest rank he attained was specialist/E-4. He was deployed to Iraq from 8 March 2004 to 6 March 2005. 
 
4.  The applicant was formally counseled on 5 February and 9 February 2007 for: 
 
 a.  He missed movement for a flight to Afghanistan on 3 February 2007. The applicant stated he did not see his name on the manifest, and that his mother’s healthcare prompted him to refuse to make manifest. He was informed his manifest was rescheduled for 8 February 2007. He was given a lawful order to make that manifest movement. The applicant stated he did not intend to deploy and would “do what he had to.” He was escorted to the Chaplain. 
 
 b.  He missed movement a second time on 8 February 2007, communicated intent to refuse to deploy, communicated a threat to harm others, and failed to be at his 
appointed place of duty. The platoon sergeant stated the applicant was taken to mental health at Womack Army Medical Center and Roscoe Robinson Health Clinic where he was cleared for deployment by both clinics. He was given a plan of action to make manifest, and the chain of command came up with ways to mitigate his deployment concerns. He chose not to follow up on those plans. 
 
5.  A DA Form 268 (Report to Suspend Favorable Personnel Actions [FLAG]) was initiated by his commander on 23 February 2007, by reason of adverse action. 
 
6.  Court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet), dated 27 February 2007, shows he was charged with missing movement on two occasions, through design, on or about 3 February 2007 and on or about 8 February 2007. 
 
7.  He consulted with legal counsel on or about 9 March 2007. 
 
 a.  He was advised of the basis for the contemplated 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. 
 
 b.  After receiving legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10. In his request for discharge, he acknowledged making the request free of coercion. He further acknowledged understanding if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 
 
 c.  He was advised he could submit any statements he desired in his behalf. He did not provide a statement. 
 
8.  On 16 March 2007, the applicant's immediate and intermediate commanders recommended approval of his request for discharge in lieu of trial by court-martial. 
 
9.  The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 19 March 2007. He further directed the applicant be reduced to the lowest enlisted grade and be issued an UOTHC Discharge Certificate. 
 
10.  Accordingly, the applicant was discharged on 5 April 2007 under the provisions of Army Regulation 635-200, Chapter 10, in lieu of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his character of service was UOTHC. He was credited with 5 years, 9 months, and 1 day of net active service 
this period with 11 months and 29 days of foreign service. He was awarded or authorized the following: 
 
• Army Good Conduct Medal 

• Global War on Terrorism Service Medal 

• Iraq Campaign Medal 

• Army Service Ribbon 

• Overseas Service Ribbon 


 
11.  His DD Form 214 listed his immediate reenlistment but did not list his continuous honorable service.  
 
12.  Administrative separations under the provisions of Army Regulation 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of a trial by court-martial. An UOTHC character of service is normally considered appropriate. 
 
13.  The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 
 
14.  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 had mental health condition that mitigated his misconduct.  
    b.  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 5 July 2001; 2) The applicant was deployed to Iraq from 8 March 2004-6 March 2005; 3) Court-martial charges were preferred against the applicant on 27 February 2007 for missing movement on two occasions on 3 February 2007 and on 8 February 2007; 4) The applicant was discharged on 5 April 2007, Chapter 10, in lieu of court-martial. His service was characterized as UOTHC. 
    c.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided. 
    d.  The applicant asserts he was experiencing family stressors and recent loss. These events caused him to be “mentally unstable for combat.” The applicant was seen by behavioral health services after he refused to deploy and missed movement on 05 February 2007. He reported increased alcohol consumption, anxiety, depression, insomnia, homicidal and suicidal ideation. The applicant was diagnosed with adjustment disorder with depressed mood and alcohol dependence/alcoholism. The applicant was 
seen again after being referred by Command on 06 February 2007 for his refusal to deploy and his report of suicidal and homicidal ideation.  The applicant continued to report distress related to his family situation and upcoming deployment. The applicant denied suicidal ideation, but he threatened to hurt his NCO if “he pissed him off.”  The applicant was reported to state he “will get out no matter what.” He was again diagnosed with an adjustment disorder with depressed mood, and he was cleared psychiatrically for command action in response to his refusal to deploy. A Report of Mental Status was prepared for the Command as a result of this appointment summarizing the results of the encounter. There was no further evidence of the applicant engaging in behavioral health services after this encounter. A review of JLV was void of any medical documentation. The applicant receives no 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 a mental health condition. He was diagnosed with an adjustment disorder with depressed mood and seen for two sessions after refusing to deploy on two occasions. 
    (2)  Did the condition exist or experience occur during military service?  Yes, the applicant reports experiencing a mental health condition while on active service. He was diagnosed with an adjustment disorder with depressed mood and seen for two sessions after refusing to deploy on two occasions. 
    (3)  Does the condition experience actually excuse or mitigate the discharge? No, there is evidence the applicant was experiencing distress related to his family condition and his upcoming deployment. He was seen for two sessions and cleared for administrative action. In addition, there is no nexus between an adjustment disorder and two incidents of intentionally missing movement to a combat deployment given that: 1) this misconduct is not part of the natural history or sequelae of the applicant’s adjustment disorder; 2) an adjustment disorder does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends his mental health condition resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration.   
 
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 (missing movement). 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 considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board was persuaded by and concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors. 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: 
 
Except for the correction addressed in Administrative Note(s) below, the Board found 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. 
 
 
  9/12/2023

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. 
ADMINISTRATIVE NOTE(S): 
 
A review of the applicant's record shows his DD Form 214, for the period ending 5 April 2007 is missing an important entry that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry in item 18 (Remarks): “CONTINUOUS HONORABLE SERVICE FROM 20010705 UNTIL 20041220” 
 
 
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.  Section 1556 of Title 10, U.S. 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. 
 
3.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Regulatory guidance provides for an additional entry for continuous honorable active service when a Soldier who previously reenlisted without being issued a DD Form 214 was discharged with any characterization of service except honorable. 
 
4.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 
 
 a.  Chapter 10 of that regulation provides, in pertinent part, 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. Although an 
honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 
 
 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. 
 
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 (DRB) 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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, 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//