IN THE CASE OF: 
 
  BOARD DATE: 19 December 2023 
 
  DOCKET NUMBER: AR20230003301 
 
 
APPLICANT REQUESTS: 
 
• upgrade of the character of his service from under honorable conditions (general) to honorable 

• a personal appearance before the Board via video or telephone 


 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149, Application for Correction of Military Record 

• Department of Veterans Affairs (VA) letter, 17 January 2023 


 
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 indicates his request is related to post-traumatic stress disorder (PTSD). He states, in effect: 
 
 a.  While serving on active duty, he suffered from undiagnosed, misdiagnosed, or untreated mental health conditions, including PTSD. He contends that the misconduct that led to his discharge was a result of his PTSD. The VA has determined that his PTSD is service connected, and he currently is receiving compensation based on a disability rating of 100-percent. 
 
 b.  He further contends that he was suffering from PTSD while in Iraq in 2003 and at that time he did not know what was going on with him. Medical personnel requested that he be discharged; however, his command, despite medical advice, sent him back to Iraq and his condition got worse. He found out years later that he was suffering from severe PTSD episodes.  
 
3.  The applicant enlisted in the Regular Army on 8 July 2002. The highest grade held was specialist/E-4. 
 
4.  While deployed to Iraq the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty on three occasions and behaving disrespectfully to a superior commissioned officer. His punishment included reduction private/E-1. 
 
5.  He underwent a separation physical on 21 October 2003, wherein he reported having: 
 
• a head injury, memory loss or amnesia 

• a period of unconsciousness or concussion 

• frequent trouble sleeping 

• been evaluated or treated for a mental condition 


 
6.  The separation physical does not include a determination of the applicant’s qualification for service. 
 
7.  As the result of his misconduct, on 31 December 2003, the applicant's commander referred him for a mental status evaluation. This examination found: 
 
• he had the mental capacity to understand and participate in the proceedings 

• he was mentally responsible for his behavior, could distinguish right from worn, and possessed sufficient mental capacity 

• he met the retention requirements of Chapter 3, Army Regulation (AR) 40-501, Medical Services-Standards of Medial Fitness 

• there was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medial channels 

• he was psychiatrically cleared for any administrative action and or training deemed appropriate by his command 
 
8.  The company commander informed the applicant that he was initiating action to separate him for a pattern of misconduct with an under honorable conditions (general) characterization of service, under the provisions of AR 635-200, Active Duty Enlisted Administrative Separations, paragraph 14-12b, patterns of misconduct. The reason cited was the applicant’s continuous pattern of misconduct that he had failed to correct. 
 
9.  On 14 January 2004, the applicant acknowledged receipt of notification of the basis for the contemplated action to separate him and of the rights available to him, including his right to consult with counsel prior to submitting his election of rights. 
 
10.  On an unknown date, the applicant's company commander formally recommended the applicant be separated under the provisions of Chapter 14, AR 635-200. 
 
11.  The separation authority subsequently approved the recommendation for discharge and directed that the applicant be separated under the provisions of AR 635-200, paragraph 14-12b, patterns of misconduct, and that his service be characterized as under honorable conditions (general). 
 
12.  On 26 January 2004 the applicant was discharged from active duty in accordance with AR 635-200, chapter 14-12b. His DD Form 214, Certificate of Release or Discharge from Active Duty, shows: 
 
• he completed 1 year, 6 months, and 19 days of net active service 

• no awards for valor 

• the narrative reason for separation was “Misconduct"  

• his service was characterized as under honorable conditions (general) 

• he received a separation code of "JKA" and a reentry code of "3" 
 
13.  After his discharge, the applicant was issued a DD Form 215, Correction to DD Form 214, which added the Global War on Terrorism Expeditionary Medal (GWOTEM), GWOT Service Medal, and his foreign service in Kuwait  
from 10 March 2003 to 20 January 2004. 
 
14.  On 1 December 2008, the Army Discharge Review Board notified the applicant that after a careful review of his application, military records, and all other available evidence, they found he had been properly and equitably discharged. 
 
15.  The applicant provides a VA disability letter, 17 January 2023, which shows he has a combined service-connected evaluation of 100 percent. However, this form does not identify the medical condition associated with this rating. 
 
16.  The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 
 
17.  The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. 
 
 
  
18.  MEDICAL REVIEW: 
 
    a.  Background: The applicant is requesting an upgrade of his general, under honorable conditions discharge to honorable. He contends PTSD mitigates 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 RA on 8 July 2002.  

• While deployed to Iraq the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty on three occasions and behaving disrespectfully to a superior commissioned officer. 

• The company commander informed the applicant that he was initiating action to separate him for a pattern of misconduct with an under honorable conditions (general) characterization of service, under the provisions of AR 635-200, Active Duty Enlisted Administrative Separations, paragraph 14-12b, patterns of misconduct. The reason cited was the applicant’s continuous pattern of misconduct that he had failed to correct. 

• On 26 January 2004 the applicant was discharged in accordance with the separation authority's decision. His DD Form 214, Certificate of Release or Discharge from Active Duty, shows his service was characterized as under honorable conditions (general) with a separation code of "JKA" and a reentry code of "3". 

• On 1 December 2008, the Army Discharge Review Board notified the applicant that after a careful review of his application, military records, and all other available evidence, they found he had been properly and equitably discharged. 


 
    c.  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), letter from the VA, and DD Form 214. 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 indicates that while serving on active duty, he suffered from undiagnosed, misdiagnosed, or untreated mental health conditions, including PTSD. He contends that the misconduct that led to his discharge was a result of his PTSD. The VA has determined that his PTSD is service connected, and he is currently receiving compensation based on a disability rating of 100-percent.  He further contends that he was suffering from PTSD while in Iraq in 2003 and, at that time, he did not know what 
was going on with him. Medical personnel requested that he be discharged; however, his command, despite medical advice, sent him back to Iraq and his condition got worse. He found out years later that he was suffering from severe PTSD episodes.  
     e.  Active-duty electronic medical records available for review indicate he self-referred for mental health services on 18 November 2002 due to disrupted sleep and concerns about excessive alcohol consumption. He participated in services for approximately 3 months prior to deployment. He underwent a separation physical on 21 October 2003, wherein he denied symptoms of depression or anxiety but endorsed having a head injury with memory loss or amnesia, a period of unconsciousness or concussion, frequent trouble sleeping, and having been evaluated or treated for a mental condition.  
    f.  On 31 December 2003, he participated in a mental status evaluation. This examination found he had the mental capacity to understand and participate in the proceedings, was mentally responsible for his behavior and could distinguish right from wrong, met retention standards, evidenced no emotional or mental disorder of psychiatric significance to warrant disposition through medical channels, and was psychiatrically cleared for any administrative action deemed appropriate by his command. 
    g.  Applicant is 100% service connected for PTSD. A C and P evaluation dated 13 September 2017, diagnosed the applicant with Posttraumatic Stress Disorder (PTSD), Major Depressive Disorder (MDD), and Alcohol Use Disorder, Severe. The VA has also diagnosed the applicant with Intermittent Explosive Disorder; MDD; Alcohol Dependence; Bipolar Disorder; and PTSD. He has been followed consistently by multiple VA providers and his record contains a Behavioral Flag warning on his VA medical records indicating he has a history of aggressive behavior towards VA staff. VA records indicate severe PTSD symptoms, including a legal altercation where he blacked out and held a gun to a man's head; charges were dismissed. In addition, he has a history of homelessness, domestic violence, multiple fights and feels he is a threat to others and isolates at home as a coping mechanism to prevent altercations.          
    h.  Based on the available information and his service connection via the VA, it is the opinion of the Agency Behavioral Health Advisor that there is evidence the applicant had a behavioral health condition that mitigates his discharge.  
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 asserts a mitigating condition.  
 
    (2)  Did the condition exist or experience occur during military service? Yes. The applicant is 100% service-connected for PTSD.  
 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant was discharged for continuous patterns of misconduct that he had failed to correct, including failing to go at the time prescribed to his appointed place of duty on three occasions and behaving disrespectfully to a superior commissioned officer. Given the nexus between PTSD and avoidance, as well as difficulty with authority, his failure to be at his appointed place of duty on three occasions and disrespect of a superior commissioned officer are mitigated by his BH condition.  
 
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, all supporting documents, and the evidence found within the military record, 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 discharged from active duty due to a pattern of misconduct and received a general, under honorable conditions discharge. 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 sufficient evidence of in-service mitigating factors to overcome the misconduct. The Board determined an honorable characterization of service is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. The Board further determined no change to the reason for separation and/or associated separation and RE codes.  
  
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 the applicant a DD Form 214 for the period ending 26 January 2004 showing: 
 
• Character of Service: Honorable 

• Separation Authority: No Change 

• Separation Code: No Change 

• Reentry Code: No Change 

• Narrative Reason for Separation: No Change 


 
  12/19/2023

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, 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 Army Board for Correction of Military Records (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.  Army Regulation (AR) 635-200, Active Duty Enlisted Administrative Separations, sets forth the basic authority for the separation of enlisted personnel. 
 
 a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 
 
 b.  It states 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 
 
3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 
 
 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. 
 
4.  Section 1556 of Title 10, United States 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. 
 
5.  AR 15-185, ABCMR, prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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.  
 
//NOTHING FOLLOWS//