IN THE CASE OF: 

		BOARD DATE:  18 October 2023

		DOCKET NUMBER: AR20230004891


APPLICANT REQUESTS: in effect, reconsideration of his previous request to upgrade 
the characterization of his service from under honorable conditions, general to 
honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149, Application for Correction of Military Record
*	Medical documents
*	TBI Diagnosis
*	Department of Veterans Affairs Rating Decision
*	DD Form 214, Certificate of Release or Discharge from Active Duty

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR20070010280 on 4 December 2007 
and Docket Number AR20170001082 on 30 March 2020.

2.  The applicant provided a new argument, which warrants consideration by the Board.

3.  The applicant states, in effect, that while serving on active duty he was assaulted, 
and he sustained a TBI. He contends his TBI was a contributing factor to the 
misconduct that led to his discharge. 

4.  The applicant enlisted in the Regular Army on 24 December 1995. He completed 
overseas service in Korea and Bosnia.

5.  An Emergency Care & Treatment record, dated 6 March 1997, shows he was treated 
at a military hospital after being assaulted by 10 men near the gymnasium. This forms 
further shows the applicant suffered multiple contusions, scalp laceration, and fracture 
of the left great toe.


6.  On 30 November 2000, the applicant executed an immediate reenlistment for a 
period of five years.

7.  His record includes a DA Form 2627, Record of Proceedings Under Article 15, 
Uniform Code of Military Justice (UCMJ), which shows he accepted nonjudicial 
punishment under the provisions of Article 15 of the UCMJ on 22 November 2004 for 
the wrongful use of cocaine on or about 10 October 2004 and 18 October 2004 at or 
near Fort Sill, Oklahoma:

8.  On an unknown date, the applicant's commander notified the applicant that he had 
initiated actions to separate him from service under the provisions of Army Regulation 
(AR) 635-200, Active Duty Enlisted Administrative Separations, paragraph 14-12c, by 
reason of misconduct – drug abuse.

9.  On 17 February 2005, the applicant acknowledged receipt of the notification 
memorandum on the same date. After being informed of his rights regarding 
administrative separation. He waived his right to an administrative board, requested to 
consult counsel, and elected not to submit statements on his behalf.

10.  Subsequent to the applicant’s notification, his commander formally recommended 
the applicant's separation from service under the provisions of AR 635-200, Chapter  
14-12c, by reason of misconduct-drug abuse.

11.  The separation authority approved the recommended discharge under the 
provisions of AR 635-200, Chapter 14-12c, commission of a serious offense and 
directed the applicant's service be characterized as under honorable conditions, 
general.

12.  The applicant was discharged on 1 April 2005. His DD Form 214 confirms he was 
discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of 
misconduct. He completed 9 years, 3 months, and 8 days of net active service. His 
service was characterized as under honorable conditions, general. He received a 
reentry code of 3 and a separation code od JKQ. 

13.  On 20 September 2006, the Army Discharge Review Board denied the applicant's 
request for an upgrade of his discharge.

14.  The applicant's request for an upgrade of his characterization of service was 
considered by the ABCMR, on 4 December 2007, in ABCMR Docket Number 
AR20070010280. 

	a.  The ABCMR considered the applicant's request based on his record and his 
contention that his characterization of service should be upgraded to honorable 
because he completed 10 years and 6 months of service. 

	b.  The ABCMR denied his requested relief after determining the evidence presented 
did not demonstrate the existence of a probable error or injustice.

15. ABCMR Docket Number AR20170001082, dated 30 March 2020, reconsidered the 
applicant's previous request based on the new argument that his "discharge for a one-
time incident of drug abuse was caused by depression and Post-Traumatic Stress 
Disorder (PTSD)." 

	a.  During this consideration, a medical advisory was obtained from the Army 
Review Boards Agency, Special Medical Staff Officer. The medical officer reviewed his 
medical records and noted, there was no "indication in his records, medical or 
administrative, that would support he had not been appropriately diagnosed with a 
behavioral health condition while serving on active duty... There was no medical 
documentation from the Army or any other outside agency or civilian medical provider to 
indicate he had or has a diagnosis of depression or PTSD." 

	b.  The ABCMR denied his requested relief after determining that there was 
insufficient evidence of an error or injustice that would warrant a change to his character 
of service.

16.  The applicant provides:

	a.  VA documents which show his TBI (claimed as memory loss) was found to be 
service-connected. 

	b.  A medical explanation of benefits which shows the applicant had acupuncture 
and therapeutic procedures on 29 November 2021.

17.  The Board should consider the applicant's statement and overall military service in 
accordance with the published equity, injustice, or clemency determination guidance.

18.  AR 635?5, states for enlisted Soldiers with more than one enlistment period during 
the time covered by this DD Form 214, enter in Item 18 (Remarks) “IMMEDIATE 
REENLISTMENTS THIS PERIOD” (specify dates). However, for Soldiers who have 
previously reenlisted without being issued a DD Form 214 and are separated with any 
characterization of service except “Honorable,” enter “Continuous Honorable Active 
Service From” (first day of service which DD Form 214 was not issued) Until (date 
before commencement of current enlistment). Then, enter the specific periods of 
reenlistments as prescribed above.
19.  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/or 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 discharge 
characterized as under honorable conditions (general).  He states:
“This correction should be made because while serving I was assaulted.  As a 
result, the TBI [traumatic brain injury] was one to the conditions that lead to my 
issues.”
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The applicant’s DD 214 shows he entered the regular Army 
on 24 December 1995 and was discharged on 1 April 2005 under the separation 
authority provided by paragraph 14-12c of AR 635-200, Personnel Separations – 
Enlisted Personnel (1 November 2000): Commission of a serious offense.  It does not 
list a period of service in a hazardous duty pay area.
    d.  The request for a discharge upgrade was denied by the ADRB on 20 September 
2006 (AR20050016300).  Rather than repeat their findings here, the board is referred to 
the record of proceedings for that case.  Because this denial was before the institution 
of liberal consideration polices, this review will concentrate on evidence of a potentially 
mitigating mental health condition as well as new evidence submitted with this 
application.
    e.  A 6 March 1997 Emergency Care & Treatment form (SF 558) from Madigan Army 
Medical Center shows the applicant was treated for multiple contusions, a left toe 
fracture, and a scalp laceration after being “jumped by approximately 10 men near [the]  
gym and kicked while on the ground.
    f.  The applicant’s one NCO Evaluation is an annual with a thru date of November 
2003.  It shows he was a successful Soldier and his rater middle blocked him as “Fully 
Capable.”  His senior rater blocked him with a 2 on a scale of 1 to 5 for overall 
performance and top-blocked him with a 1 for overall potential opining:
*	promote with peers and send to BNCOC [Basic NCO Course]
*	technically competent NCO who will succeed
*	continue to assign to positions of greater responsibility
*	seeks opportunity to grow professionally

    g.  The applicant, a Sergeant (E05) at the time, received a field grade article 15 on 22 
November 2004 for the wrongful use of cocaine.  A reduction in rank to Specialist (E04) 
was part of the punishment imposed.
    h.  In an undated memorandum, the applicant’s company commander notified the 
applicant he was initiating separation action under paragraph 14-12c of AR 635-200 for 
“misconduct – drug abuse.”
    i.  In a similarly undated memorandum, the brigade commander approved the 
applicant’s discharge directing that his service be characterized as general, under 
honorable conditions. 
    j.  Review of his records in JLV shows the applicant was awarded a service-
connected disability rating for PTSD.   
Kurta Questions:
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the 
discharge?  YES: PTSD
    (2)  Did the condition exist or experience occur during military service?  YES
    (3)  Does the condition or experience actually excuse or mitigate the discharge?  
YES: As PTSD is associated with the illicit use of substances and/or alcohol to self-
medicate symptoms, there is a nexus between his diagnosis of PTSD and his illicit drug 
use.

BOARD DISCUSSION:

1. After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that partial relief was warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service.  Upon review of 
the applicant’s petition, available military records and medical review, the Board 
considered the advising official findings that PTSD is associated with the illicit use of 
substances and/or alcohol to self-medicate symptoms, there is a nexus between his 
diagnosis of PTSD and his illicit drug use. However, the Board found the severity of the 
misconduct as a noncommissioned officer for cocaine use that results in reduction in 
rank could not be mitigated. 
2. The Board noted, the applicant provided insufficient evidence of post-service 
achievements or character letters of support that attest to his post honorable conduct 
that might have mitigated the misconduct that resulted in the discharge characterization. 
Furthermore, the Board noted the applicant was discharged for misconduct and was 
provided an under honorable conditions (General) characterization of service.  The 
Board agreed that the applicant's discharge characterization is warranted as he did not 
meet the standards of acceptable conduct and performance of duty for Army personnel 
to receive an Honorable discharge. During deliberation, the Board determined the 
applicant had a prior period of honorable service which is not currently reflected on his 
DD Form 214 and recommended that change be completed to more accurately show 
his period of honorable service by granting a partial upgrade.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


?
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief. As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by amending 
the applicant’s DD Form 214 for the period ending 1 April 2005 by adding the following 
additional statement to item 18 (Remarks) to show CONTINUOUS HONORABLE 
ACTIVE SERVICE FROM 19951224 UNTIL 20001129.

2. The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief. As a result, the Board recommends denial of so much of 
the application that pertains to reconsideration of the applicant’s previous request to 
upgrade the characterization of his service from under honorable conditions, general to 
honorable.


		  
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, United States 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. The regulation, in 
effect at the time, states-

	a.  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 14 established policy and prescribed procedures for separating 
members for misconduct. Specific categories included minor disciplinary infractions, a 
pattern of misconduct, commission of a serious offense, conviction by civil authorities, 
desertion, or absences without leave. Action would be taken to separate a member for 
misconduct when it was clearly established that rehabilitation was impracticable or was 
unlikely to succeed. A discharge under other than honorable conditions was normally 
considered appropriate. However, the separation authority could direct a general 
discharge if such was merited by the Soldier's overall record.

3.  AR 635-5, Personnel Separations-Separations Documents, states that for enlisted 
Soldiers with more than one enlistment period during the time covered by the 
DD Form 214, enter in Item 18 (Remarks) “IMMEDIATE REENLISTMENTS THIS 
PERIOD” (specify dates). However, for soldiers who have previously reenlisted without 
being issued a DD Form 214 and are separated with any characterization of service 
except “Honorable,” enter “Continuous Honorable Active Service From” (first day of 
service which DD Form 214 was not issued) Until (date before commencement of 
current enlistment). Then, enter the specific periods of reenlistments as prescribed 
above.

4.  Title 38, USC, section 1110 (General - Basic Entitlement):  For disability resulting 
from personal injury suffered or disease contracted in line of duty, or for aggravation of 
a preexisting injury suffered or disease contracted in line of duty, in the active military, 
naval, or air service, during a period of war, the United States will pay to any veteran 
thus disabled and who was discharged or released under conditions other than 
dishonorable from the period of service in which said injury or disease was incurred, or 
preexisting injury or disease was aggravated, compensation as provided in this 
subchapter, but no compensation shall be paid if the disability is a result of the veteran's 
own willful misconduct or abuse of alcohol or drugs.

5.  Title 38, USC, section 1131 (Peacetime Disability Compensation - Basic 
Entitlement):  For disability resulting from personal injury suffered or disease contracted 
in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in 
line of duty, in the active military, naval, or air service, during other than a period of war, 
the United States will pay to any veteran thus disabled and who was discharged or 
released under conditions other than dishonorable from the period of service in which 
said injury or disease was incurred, or preexisting injury or disease was aggravated, 
compensation as provided in this subchapter, but no compensation shall be paid if the 
disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs.

6.  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.

7.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20230004891


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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