IN THE CASE OF:

  BOARD DATE: 19 December 2023 
 
  DOCKET NUMBER: AR20230004454 
 
 
APPLICANT REQUESTS:  an upgrade of his already-upgraded 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) 
 
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, when the Army Discharge Review Board (ADRB) reviewed his request for upgrade of his characterization of service they failed to review his service connected disabilities; post-traumatic stress disorder (PTSD) and mood disorder which were the main reasons for the behavior leading to his discharge. The applicant notes PTSD, other mental health, and sexual assault/harassment as issues related to his request. 
 
3.  The applicant enlisted in the Regular Army on 27 April 2006. The highest rank he attained was private/E-1. 
 
4.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 9 November 2006 for the wrongful use of marijuana, on or about 7 October 2006. His punishment consisted of forfeiture of $297.00 pay, extra duty for 14 days, and 14 days of restriction. 
 
5.  He was formally counseled on 4 December 2006 for the use of illegal drugs (ecstasy) and failing a second urinalysis while enrolled in the Army Substance Abuse Program (ASAP). 
 
6.  Court-martial charges were filed against the applicant for violations of the Uniform Code of Military Justice. The relevant DA Form 458 (Charge Sheet) is not available for review. However, a DA Form 4430 (Department of the Army Report of Result of Trial) shows that before a summary court-martial on 21 March 2007, the applicant pled guilty to and was found guilty of two specifications of the wrongful use of amphetamines, between on or about 18 November 2006 and on or about 22 November 2006, and between on or about 1 December 2006 and on or about 5 December 2006. His sentence consisted of confinement for 30 days. 
 
7.  Two DA Forms 4187 (Personnel Action) confirm the following changes in the applicant’s duty status: 
 
• Present for Duty to Confined by Military Authorities on 21 March 2007 

• Confined by Military Authorities to Present for Duty on 14 April 2007 
 
8.  The applicant's immediate commander notified the applicant on 1 May 2007, of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of commission of a serious offense. As the specific reason, the commander cited the applicant’s submission of a positive urine sample during a probable cause urinalysis. The applicant acknowledged receipt of this notification on 3 May 2007. 
 
9.  On 7 May 2007, 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 not to submit a statement in his own behalf. 
 
10.  On the same date, the applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, prior to the expiration of his term of service. 
 
11.  The applicant’s intermediate commanders reviewed and concurred with recommended separation action, further recommending a UOTHC characterization of service. 
 
12.  The separation authority approved the recommended separation action on 24 May 2007 and directed a UOTHC characterization of service. 
 
13.  The applicant was discharged on 31 May 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). His DD form 214 (Certificate of Release or Discharge from Active Duty) confirms his character of service was UOTHC, with separation code JKK and reentry code RE-4. He was credited with 1 year and 11 days of net active service. 
14.  The Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgrade of his UOTHC characterization of service on 4 November 2020. After careful consideration, the Board determined the characterization of service was inequitable based upon the circumstances surrounding the discharge (military sexual trauma). The Board voted to upgrade the applicant’s character of service to under honorable conditions (general). 
 
15.  On 12 January 2021, the applicant was issued a corrected copy of his DD Form 214 for the period ending 31 May 2007 which showed an under honorable conditions (general) characterization of service. 
 
16.  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. 
 
17.  The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 
 
18.  MEDICAL REVIEW: 
 
    a.  Background: The applicant is requesting an upgrade of his under honorable conditions (general) characterization of service. He contends PTSD, MST, and OBH mitigate his discharge. 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 27 April 2006.  

• Applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice on 9 November 2006 for the wrongful use of marijuana, on or about 7 October 2006. 

• He was formally counseled on 4 December 2006 for the use of illegal drugs (ecstasy) and failing a second urinalysis while enrolled in the Army Substance Abuse Program (ASAP). 

• Court-martial charges were filed against the applicant for violations of the Uniform Code of Military Justice. The relevant DA Form 458 (Charge Sheet) is not available for review. However, a DA Form 4430 (Department of the Army Report of Result of Trial) shows that before a summary court-martial on 21 March 2007, the applicant pled guilty to and was found guilty of two specifications of the wrongful use of amphetamines, between on or about 18 November 2006 and on or about 22 November 2006, and between on or about 1 December 2006 and on or about 5 December 2006. His sentence consisted of confinement for 30 days. 


• Applicant's immediate commander notified the applicant on 1 May 2007, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of commission of a serious offense. As the specific reason, the commander cited the applicant’s submission of a positive urine sample during a probable cause urinalysis. 

• Applicant was discharged on 31 May 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). His DD form 214 (Certificate of Release or Discharge from Active Duty) confirms his character of service was UOTHC, with separation code JKK and reentry code RE-4. 

• Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgrade of his UOTHC characterization of service on 4 November 2020. After careful consideration, the Board determined the characterization of service was inequitable based upon the circumstances surrounding the discharge (military sexual trauma). The Board voted to upgrade the applicant’s character of service to under honorable conditions (general). 
 
    b.  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), DD Form 214, and documents from his service record and separation packet. 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.  
    c.  The applicant states when the Army Discharge Review Board (ADRB) reviewed his request for an upgrade of his characterization of service, they failed to review his service-connected disabilities; post-traumatic stress disorder (PTSD) and mood disorder which were the main reason for the behaviors leading to his discharge. The applicant notes PTSD, other mental health, and sexual assault/harassment as issues related to his request. 
    d.  Active-duty electronic medical records available for review indicate, the applicant was treated while in-service starting in October 2006 via the Substance Abuse Rehabilitation Department (SARD) and received both individual and group therapy. A note dated 31 October 2006, diagnosed him with Adjustment Disorder with Depressed Mood and Cannabis Abuse. Another note dated 28 November 2006, reports he was referred for medication due to depressed mood secondary to work related stressors since he was pending a Chapter 14. The applicant was seen on 6 December 2006 and reported being drug tested 3 times within 3 days. He had received another Article 15 for a positive urinalysis for ecstasy and had 5 positive urinalyses in a 6-week period. On 27 February 2007, he was diagnosed with Adjustment Disorder and Cannabis Abuse. He 
reported relational problems and stress related to his pending Chapter 14 and he was drinking daily but was attending ASAP weekly. Overall, the applicant’s in-service treatment focused on familial and work stressors, as well as issues with substance use.  
    e.  The applicant is 100% service connected for PTSD. VA electronic medical records (JLV) available for review evidence a C and P evaluation dated 26 March 2021, diagnosing the applicant with PTSD and Recurrent Depressive Disorder. The applicant reported during the evaluation, that while in service he uncovered his sergeant and some other soldiers where selling drugs and guns. Unrelated to this, he was experiencing some adjustment difficulties to the Army and sought behavioral health service. When his sergeant found out about this, he assumed he would tell the therapist about the illegal activities. The applicant reports that he was physically and then sexually assaulted by these soldiers. They also threatened to kill him if he told anyone. During the evaluation, the applicant further disclosed a traumatic childhood history with poverty, familial disruption, school difficulties, juvenile justice involvement, and one psychiatric inpatient hospitalization. His traumatic childhood potentially made him more vulnerable to chronic PTSD once he experienced MST. The applicant initiated services with the VA in July 2021, once the characterization of his service was upgraded. An intake evaluation dated 01 July 2021, indicates the applicant reports having been psychiatrically hospitalized several times due to depression and anxiety. However, he was unable to provide the specific dates. He further reported being shot three times in 2007 and during the appointment showed the clinician his abdominal scars. The applicant has been treated primarily via non-VA therapists and has received supportive services via a charitable agency for veterans. The VA record indicates he is being treated for chronic PTSD and Mood Disorder via medication management.  
 
    f.  Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence the applicant had an experience and subsequent behavioral health condition during military service 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 experience, MST, and subsequent behavioral health 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 had repeated positive urinalyses while in military service and was discharged due to submission of a positive urine sample during a probable cause urinalysis. However, given the nexus between MST-related PTSD and the use of 
substances to alleviate/cope with the symptoms of his behavioral health condition, the reason for his discharge is fully mitigated. In accordance with the ARBA policy regarding MST and liberal consideration, it is recommended the applicant’s character of service be upgraded to Honorable and his narrative reason be changed to Secretarial Authority.  
 
BOARD DISCUSSION: 
 
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 Misconduct – Commission of a Serious Offense. He received an under other than honorable conditions discharge which was upgraded to general, under honorable conditions by the ADRB. 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 31 May 2007 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, 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. The version in effect at the time provided that: 
 
 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.  Paragraph 3-7b states 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. 
 
 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 under other than honorable conditions 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 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. 
 
5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NR 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//