IN THE CASE OF: 
 
  BOARD DATE: 5 September 2023 
 
  DOCKET NUMBER: AR20230002365 
 
 
APPLICANT REQUESTS:  an upgrade of his under honorable conditions (general) characterization of service. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) with self-authored statement 

• High School Transcripts, Ruskin High School, 14-May-2003 

• DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 18 December 2004 

• College Transcripts, dated 8 June 2009 to 4 December 2011 

• Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative), dated 25 October 2022 

• VA Form 21-4138 (Statement in Support of Claim), dated 25 October 2022 

• seven statements of support, dated 31 October 2022 to 3 November 2022 


 
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.  Private First Class (PFC) T.J., PFC T.H., and the applicant were at a club off base when they got into an altercation with another Soldier, Specialist (SPC) M.J., who owed PFC T.J. money. Two noncommissioned officers witnessed the altercation. One grabbed the applicant by the throat, thinking he was going after SPC M.J. The applicant became enraged and flipped a table over. 
 
 b.  On the way back to base, PFC T.J. suggested going by SPC M.J.’s room to talk with him because the night got out of hand over $100.00. The applicant stated it was not a good idea because they were all drunk. His friend insisted, and the applicant and PFC 
T.H. went with to ensure things didn’t get out of control. They hung back while PFC T.H. and SPC M.J. talked through a window screen. He was nodding off when conversation got physical. PFC T.J., who had gone through the window screen, was punching and kicking the other SPC M.J. and broke his laptop and speakers. The applicant went through the window, pulled PFC T.J. away, and eventually got him out of the room. 
 
 c.  The next morning, the Military Police (MP) knocked on the door and took the applicant and the other two Soldiers into custody. In the months to come, one Soldier took a plea deal, and one was court-martialed and received a bad conduct discharge. The applicant was given a general court-martial which he believes was less than fair. Witnesses told stories that didn’t match. The applicant’s own lawyer told him she did not believe him. 
 
 d.  He was found guilty of multiple charges but remained hopeful as he was returned to duty. Upon being released back to his unit, he was informed of his commander’s intent to separate him from service. He was handed a lot of paperwork to sign. It was years later that he discovered paperwork saying he volunteered to leave the Army. He wishes he would have had one person looking out for him then. 
 
 e.  He does not want to take away from his mistakes, but he does not believe he received a fair trial. He believes he saved two lives that night. He now has an associates degree in applied science and a bachelor’s degree in engineering. He is a husband, father, deacon, and a pillar in his community. 
 
 f.  He suffers from post-traumatic stress disorder (PTSD) from this experience. He would like to get assistance from the VA. 
 
3.  The applicant enlisted in the Regular Army on 24 July 2003 for a 3-year period. The highest rank he attained was private/E-2. 
 
4.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 14 February 2004 for the following violations of the Uniform Code of Military Justice (UCMJ): 
 
• communicating a threat with intent to obtain something unlawfully, on diverse occasions on or about 14 February 2004 

• two specifications of unlawfully shoving and pushing SPC M.J., on or about 14 February 2004 

• committing an assault upon SPC M.J., intentionally inflicting grievous bodily harm, to wit: a broken nose, chipped tooth, and deep cuts on his head, on or about 15 February 2004 

• willfully damaging military property, of a value less than $500.00, by punching a window screen, on or about 14 February 2004 


• unlawfully breaking and entering the dwelling house of SPC M.J., with intent to commit extortion and assault therein, on or about 14 February 2004 

• willfully damaging the property of SPC M.J., in the value of $2,660.00, on or about 14 February 2004 

• willfully damaging the property of SPC M.J., in the value of $100.00, on or about 14 February 2004 


 
5.  Before a general court-martial on or about 10 May 2004 at Camp Humphreys, Republic of Korea, the applicant was found guilty of the charges above with the exception of willfully damaging military property, of a value less than $500.00, for which he was found not guilty. His sentence was adjudged on 27 May 2004. He was sentenced to reduction to private/E-1, forfeiture of $550.00 pay per month for six months, and confinement for 179 days. 
 
6.  The applicant underwent a pre-separation medical examination on 27 August 2004. The relevant DD Form 2807-1 (Report of Medical History) and corresponding DD Form 2808 (Report of Medical Evaluation) show he reported being in good health and was deemed qualified for service. 
 
7.  He underwent a mental status evaluation on or about 27 October 2004. He was psychiatrically cleared for any administrative action deemed appropriate by command. 
 
8.  On or about 4 November 2004, the applicant requested, through defense counsel, a discharge after trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10. The applicant’s request was denied. The general court-martial sentence was approved and ordered duly executed. 
 
9.  The applicant's commander notified the applicant of his intent to initiate action to separate him from service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of commission of a serious offense. The commander cited the specific reason as the applicant’s conviction by general court-martial for violations of the UCMJ. The applicant acknowledged receipt of the notification on 22 November 2004. 
 
10.  The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He elected to submit a statement in his own behalf. 
 
11.  On 24 November 2004, the applicant requested to be retained in the U.S. Army. He described his family history and the challenges he experienced growing up. He detailed his success in Junior Reserve Officer Training Corps, basic training, and advanced individual training (AIT). He accepted responsibility for his actions; he was fresh out of 
AIT and was only 19 years old. He was married and financially supported his mother. He was motivated to become the best Soldier in the unit and would not ruin his second chance. 
 
12.  The applicant's immediate and intermediate commanders formally recommended his separation prior to the expiration of his term of service, by reason of commission of a serious offense. The intermediate commander reviewed and concurred with the recommendation, further recommending the issuance of a general discharge. 
 
13.  The separation authority approved the recommended action and directed the issuance of an under honorable conditions (general) characterization of service. 
 
14.  The applicant was discharged on 18 December 2004. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct and his character of service was under honorable conditions (general). He was credited with 11 months and 27 days of net active service with lost time from 27 May 2004 to 21 October 2004. 
 
15.  General Court-Martial Order 10, Headquarters, Department of the Army, Washington, D.C., dated 15 August 2005, shows the Judge Advocate General determined the record of trial did not accurately report the proceedings in either a verbatim or summarized manner. It did not support the findings of guilty and failed to provide sufficient completeness to allow consideration of what occurred at trial and adequate review. These errors materially prejudiced the substantial rights of the accused under the UCMJ. The findings of guilty and the sentence were set aside, and the charges and specifications were dismissed. All rights, privileges, and property of which the sentence had been deprived by virtue of the findings of guilty and the sentence set aside would be restored. 
 
16.  The Army Review Boards Agency (ARBA), Case Management Division, sent the applicant a letter on 13 April 2023 requesting additional medical documentation to support his contention of PTSD. 
 
17.  The applicant provides: 
 
 a.  His education transcripts, to include high school and college, culminating in a Bachelor of Science in Electronics and Communications Engineering Technology on 4 December 2001 from ITT Technical Institute, Kansas City, MO. 
 
 b.  A VA Form 21-22 and VA Form 21-4138, dated 25 October 2022, shows the applicant appointed the Veterans Service Organization as his representative and filed a statement in support of his claim. 
 
 c.  In seven statements of support, dated 31 October 2022 to 3 November 2022, the authors attest to the applicant’s integrity, work ethic, sense of commitment, and dedication to his family. He is a great leader who goes out of his way to assist others and support his community.  
 
18.  Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. Characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. 
 
19.  The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 
 
20.  MEDICAL REVIEW: 
 
    a.  Background: The applicant is requesting an upgrade of his under honorable conditions (general) characterization of service. The applicant indicated other mental health as being related to his request for upgrade but in his narrative wrote he experiences PTSD “from this issue” (indicating his discharge).  
    b.  The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory:  
• Applicant enlisted in the Regular Army on 24 July 2003.  

• On 14 February 2004, court-martial charges were preferred against the applicant for the following violations: communicating a threat with intent to obtain something unlawfully, on diverse occasions on or about 14 February 2004; two specifications of unlawfully shoving and pushing SPC M.J., on or about 14 February 2004; committing an assault upon SPC M.J., intentionally inflicting grievous bodily harm, to wit: a broken nose, chipped tooth, and deep cuts on his head, on or about 15 February 2004; willfully damaging military property, of a value less than $500.00, by punching a window screen, on or about 14 February 2004; unlawfully breaking and entering the dwelling house of SPC M.J., with intent to commit extortion and assault therein, on or about 14 February 2004; willfully damaging the property of SPC M.J., in the value of $2,660.00, on or about 14 February 2004; willfully damaging the property of SPC M.J., in the value of $100.00, on or about 14 February 2004 

• Before a general court-martial on or about 10 May 2004, the applicant was found guilty of the charges above with the exception of willfully damaging military property, of a value less than $500.00, for which he was found not guilty. His sentence was adjudged on 27 May 2004. He was sentenced to reduction to 


private/E-1, forfeiture of $550.00 pay per month for six months, and confinement for 179 days. 

• On or about 4 November 2004, the applicant requested, through defense counsel, a discharge after trial by court-martial under AR 635-200, Chapter 10. His request was denied. The general court-martial sentence was approved and ordered duly executed. 

• On 22 November 2004, the applicant's commander notified the applicant of his intent to initiate action to separate him from service under AR 635-200, paragraph 14-12c, by reason of commission of a serious offense.   

• The applicant was discharged on 18 December 2004 under honorable conditions (general) discharge.  

• General Court-Martial Order 10, Headquarters, Department of the Army, Washington, D.C., dated 15 August 2005, shows the Judge Advocate General determined the record of trial did not accurately report the proceedings in either a verbatim or summarized manner. It did not support the findings of guilty and failed to provide sufficient completeness to allow consideration of what occurred at trial and adequate review. These errors materially prejudiced the substantial rights of the accused under the UCMJ. The findings of guilty and the sentence were set aside, and the charges and specifications were dismissed. All rights, privileges, and property of which the sentence had been deprived by virtue of the findings of guilty and the sentence set aside would be restored. 


 
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, his ABCMR Record of Proceedings (ROP), self-authored statement, high school and college transcripts, VA From 21-22, VA Form 21-4138, 7 statements of support, DD Form 214, 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), though minimal data is available. Lack of citation or discussion in this section should not be interpreted as lack of consideration.  
 
    d.  The applicant asserts that he has PTSD secondary to the experience surrounding his discharge. Please see his application and self-authored statement for full details. In short, the applicant states he helped stop a significant fight, which involved him having to enter the residence of another soldier and was later found guilty of multiple charges. He was hopeful of returning to duty but was separated, only later discovering that the paperwork he signed was him requesting to discharge. He feels like no one was looking out for him. Per the applicants’ records, he was not discharged by choice/due to request 
but was instead discharged due to his misconduct. However, there is evidence that he had requested a discharge under chapter 10, which was denied.  
 
    e.  There are minimal electronic health records (EHR) from his time in service to review and no mental health records, which is to be expected given the timeframe he served. However, some medical documents were included in his service record. The applicant underwent a pre-separation medical examination on 27 August 2004. The relevant DD Form 2807-1 (Report of Medical History) and corresponding DD Form 2808 (Report of Medical Evaluation) show he reported being in good health, denied any mental health concerns, and was deemed qualified for service. The applicant had a mental status evaluation 27 October 2004 as part of the separation process. The applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, met medical retention requirements per AR 40-501 chapter 3, and was cleared to participate in any administration action deemed required by command. He was diagnosed with occupational problems (presumably secondary to the court martial charges), and a rule out of alcohol abuse. He did not provide any additional medical documentation to support his assertion of mental health concerns during his period of service.  
 
    f.  In his supporting documents, the applicant included letters of reference. His wife was one of several who wrote a reference letter. In her account she shared the change she observed in him from pre-service, to time in service, and after discharge. She noted a change in his mood, some typical post-trauma symptoms, behavioral changes she observed, as well as learning that he was likely depressed.  
    g.  Per the applicant’s VA EHR, he is not service connected. He has not been engaged in any mental health care through the VA and he holds no mental health diagnoses with the VA. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health diagnoses, nor mental health records. No other medical records were provided. 
    h.  Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence, outside of self-report, to support the applicant had a condition or experience at the time of service that mitigated his discharge. However, he contends other mental health concerns are related to his request for upgrade, and 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, applicant asserts “other mental health” is related to his request for an upgrade to his discharge.  
 
    (2)  Did the condition exist or experience occur during military service? Yes, the experience occurred during the time in service that led to an asserted mitigating mental health condition toward the end of his service and/or after discharge. 
 
   (3)   Does the condition or experience actually excuse or mitigate the discharge? No. Recommend clemency/restore his record.  
 
    i.  The applicant asserted other mental health was related to his request for upgrade and noted that he has PTSD secondary to the experiences that led to his discharge. Per Liberal Consideration guidance, his contention is sufficient for the board’s consideration. His wife’s reference letter does indicate some mental health symptoms were likely present during service and as a result of the charges/discharge (isolating, increased substance use, increased anger, increased risky/impulsive behaviors, depression, hypervigilance, etc.).  Hence, there is minimal evidence beyond self-report that the applicant was experiencing a mitigating condition during the misconduct. There was no evidence provided that indicates he has ever been diagnosed with any mental health condition. Of note, there is no nexus between the behaviors described in his charges (physical violence, damaging property, breaking into someone’s residence, etc) and PTSD or depression. This misconduct is not part of the natural history or sequelae of his reported mental health conditions. And if these mental health concerns were present at the time of his misconduct, they do not affect one’s ability to distinguish right from wrong and act in accordance with the right.  
 
    j.  That said, per the applicant’s service record, these charges have been dismissed and “all rights, privileges, and property” were to be restored. The applicant was consistent in his narrative during the time of alleged misconduct to the time of this application, that he did not do what he was accused of and was in the wrong place at the wrong time and was trying to do the right thing by breaking up the fight. Per the letters of reference, it also appears he’s lived his whole life (childhood through adulthood) working to help and serve others. Based on the totality of his record and supporting documents, this advisor would strongly recommend clemency and/or a restoration to his service record as is supported by the charges being dropped in 2005, given they were the sole reason listed for his chapter 14-12c separation. 
 
 
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 convicted by a general court-martial of assault, extortion, battery, burglary, and property damage. The court sentenced him to forfeiture of pay, reduction, and confinement. The convening authority approved the sentence. The chain of command initiated separation action against the applicant for misconduct -commission of a serious offense based on his general court-martial conviction. He was discharged on 18 December 2004, in grade PV2/E-2, with a general characterization of service. However, on review of his case, The Judge Advocate General found several errors in the court-martial that materially prejudiced the applicant’s substantial rights and directed that the findings of guilty and the sentence are set aside, and the charges and specifications are dismissed. All rights, privileges, and property of which the sentence has been deprived by virtue of the findings of guilty and the sentence set aside will be restored.  
 
 b.  Based on The Judge Advocate General finding and dismissal of the general court-martial charges, the specific grounds for the chapter 14 that separated the applicant, no longer existed. Based on a preponderance of evidence, the Board determined that the applicant’s characterization of service should be restored to honorable by reason of Secretarial Authority  
  
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 18 December 204 showing: 
 
• Rank/Grade: PV2/E-2 

• Effective Date of Pay Grade: 24 Marc 2004 

• Characterization of Service: Honorable  

• Separation Authority: AR 635-200 

• Separation Code: JFF 

• Reentry Code: 1 

• Narrative Reason for Separation: Secretarial Authority 


 
  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 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, USC, 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 635-200 sets forth the basic authority for the separation of enlisted personnel.  
 
 a.  Paragraph 3-7a provides that 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.  Chapter 10 provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions (UOTHC) discharge was normally considered appropriate. 
 
 c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable 
or is unlikely to succeed. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 
 
4.  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; 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. 
 
5.  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//