IN THE CASE OF: 
 
  BOARD DATE: 3 November 2023 
 
  DOCKET NUMBER: AR20230006694 
 
 
APPLICANT REQUESTS:  
 
• in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge 

• that his narrative reason for separation be changed to reflect a medical discharge 


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

• Post service mental health records  


 
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 is requesting his UOTHC to be changed to a "Chapter 17" medical discharge due to a having been granted a Department of Veterans Affairs (VA) disability for an unspecified personality disorder. He believes there were errors in his prior discharge, as evidenced by the service connected rating for unspecified personality disorder. 
 
3.  On the applicant's DD Form 149, he indicates mental health issues (undefined personality disorder) as contributing and mitigating factors in the circumstances that resulted in his separation. 
 
4.  The applicant provides 14 pages of mental health treatment records covering the period 15 January 2014 to 19 September 2014. The records show diagnoses of psychosis, anxiety, and a major depressive disorder. The applicant further references attachments of a VA rating letter and decision; however, neither were attached. 
 
 
5.  The applicant enlisted in the Regular Army on 1 June 2000 for 4 years, completed training with award of military occupational specialty 25U (Signal Support Systems Specialist). He served in Korea from 25 January 2001 to 31 January 2002.  The highest grade he held was E-4. 
 
6.  Court-martial charges were preferred against the applicant on 17 October 2003 for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with being absent without leave from on or about 3 February 2003 until on or about 21 July 2003. 
 
7.  On 23 October 2003, after consulting with legal counsel he requested a discharge in lieu of trial by courts-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  He acknowledged: 
 
• maximum punishment 

• he was guilty of the charges against him or of a lesser included offense 

• he does not desire further rehabilitation or further military service 

• if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate  

• he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration,  

• he may be deprived of his rights and benefits as a veteran under both Federal and State law 

• he may expect to encounter substantial prejudice in civilian life 
 
8.  The separation authority approved the applicant's request for discharge on 7 November 2003 under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and receive a under other than honorable conditions discharge.  
 
9.  The applicant was discharged on 2 December 2003 in the grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of court martial and his service was characterized as UOTHC. He was credited with 3 years and 14 days of net active service with 2 periods of lost time totaling 168 days. He was assigned separation code KFS and the narrative reason for his separation listed as “In Lieu of Trial by Court-Martial,” with a reentry code of 4.  It also shows he was awarded or authorized: 
 
• National Defense Service Medal 

• Army Service Ribbon 

• Overseas Service Ribbon 


 
10.  On 17 November 2011, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. Two subsequent applications were administratively closed on 5 April 2013 and again on 17 August 2018.  
 
11.  By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service or in lieu of trial by court-martial. 
 
12.  Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge.  As a result, the VA operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 
 
13.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 
 
14.  MEDICAL REVIEW: 
 
    a.  Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. In addition, he is requesting that his narrative reason for separation be changed to reflect a medical discharge. The applicant contends that other mental health was a mitigating factor in his misconduct.       
    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 into the RA on 1 June 2000. 

• Court-martial charges were preferred against the applicant on 17 October 2003 for being absent without leave from on or about 3 February 2003 until on or about 21 July 2003.  

• On 23 October 2003, the applicant requested discharge under AR 635-200, Chapter 10, in lieu of trail by court martial. His request was approved.  

• The applicant was discharged on 2 December 2003 with an Under Other Than Honorable Conditions discharge.  

• On 17 November 2011, the ADRB reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade. Two subsequent applications were administratively closed on 5 April 2013 and again on 17 August 2018. 
 
    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), DD Form 214, documents from his service record and separation, as well as post service mental health records. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and VA rating decision records were obtained through VBMS. Lack of citation or discussion in this section should not be interpreted as lack of consideration.  
 
    d.  The applicant reports that he’s been granted service-connected disability for an unspecified personality disorder. He asserts other mental health is related to his request for upgrade. He believes that this UOTHC discharge should be upgraded to a “chapter 17 medical.” This advisor is not aware of a chapter 17 medical discharge. The applicant may be referring how the VA referenced this decision, or to a previously labeled chapter 5-17 or what is now named a 5-14, which covers “Other designated physical or mental conditions” to include personality disorders. In previous applications to ARBA he has also highlighted that he had asked for help, but his unit did not do anything to help him get counseling. In this previous application he also asserted that he was admitted into the Darnall Army Hospital’s mental ward for a suicide attempt.  
    e.  The applicant’s time in service predates consistent use of electronic health records (EHR) by the Army, hence minimal EHRs are available for review. His service record and supporting documents did not contain his service treatment records (STR), nor service records that reflected any ongoing mental health concerns or mental health diagnoses. He had previously asserted being in the mental ward while at FT Hood for a suicide attempt. While there are no treatment records available for review, this provided did find a cancelled consultation/referral order from 1 March 2003 that stated the applicant was “discharged from inpatient psych. Recently. Needs evaluation for deployment.” No diagnoses nor any other background information was provided in this note. No other documentation was provided from his time in service.  
    f.  Per the applicant’s VA EHR, he is not service connected. The applicant references a VA decision letter; however, it was not attached. This advisor was able to obtain a copy of his rating decision. From 7 December 2021 it appears a correction was made, and the applicant is NOT service connected for treatment purposes only. The decision, in part, reads: “I hereby certify that the claims record of this Veteran has been reviewed and that the following clear and unmistakable error has been identified: The rating decision dated November 17, 2021 for unspecified personality disorder for treatment purposes only under 38 USC Chapter 17 was erroneous. The Veteran was not 
diagnosed with a mental disorder within 2 years after separation from active duty.” While his record does indicate he received an unspecified personality disorder diagnosis during a C&P in 2021, this would have come 18 years post discharge and would not be sufficient to justify a medical discharge.  
    g.  Given the characterization of his discharge, he would not typically be eligible for most VA benefits however he has had some engagement with the VA (2012-2023). He has primarily interacted with the homeless programing (HUD/VASH) as well as legal and transitioning support (through Veteran Justice Outreach). Presenting concerns have included homelessness, imprisonment and other incarceration, other problems related to housing and economic circumstances, sheltered homelessness, depressive disorder – not elsewhere classified and major depressive disorder (MDD) – recurrent – moderate.  Through review of JLV, this applicant did not have any “Community Health Summaries and Documents.” The applicant provided mental health treatment records from 2014 that report diagnoses of major depressive disorder – recurrent -severe – without psychosis and cannabis dependence. The applicant also described significant anxiety and potential psychosis. In his civilian progress note from 21 January 2014, the provider notes that the applicant had brought paperwork with to the appointment, showing he’d received psychiatric help at a civilian hospital after cutting his wrists and was diagnosed with mood disorder NOS, polysubstance abuse and marijuana. The date of this is unclear, but it was reportedly in 2003.  
    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. There is insufficient evidence to support a medical 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 other mental health.  
    (2)  Did the condition exist or experience occur during military service? Yes, the applicant asserts his mental health issues during his time in service were related to his discharge.   
 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts mitigation due to other mental health issues, however there is minimal evidence, beyond self-report, that the applicant was experiencing a mitigating condition on active service. There was a consultation record found that substantiates he was hospitalized sometime in 2003 for mental health, however there were no documents found or provided to indicate what his diagnoses was. Per the applicant’s self-report, he had anxiety and depression, as well as a suicide attempt. Since discharge, the applicant has been diagnosed with MDD and cannabis dependence, but these diagnoses came 11 years after his discharge. He was 
diagnosed with unspecified personality disorder, but again this came 18 years after discharge. He reported during mental health encounters in 2014 that he had mental health concerns during his period of service. The applicant is not currently service connected. The applicant has asserted in previous applications to the board, as well as in mental health records throughout the years, that his mental health concerns started in the Army. Going AWOL is an avoidance behavior consistent with anxiety and depression, hence there is a nexus between his asserted mental health concerns and the misconduct that led to his discharge. Given there is some indication of an unknown mental health concern during his time in service that led to psychiatric hospitalization, this advisor recommends consideration of, at a minimum, a partial upgrade to his discharge.  
 
    i.  In regard to a medical discharge, there is insufficient evidence to support a change in his discharge to a chapter 5-14. There is also no evidence to suggest the applicant was ever issued a permanent profile, found unfit for duty, or was diagnosed with a condition that did not meet medical fitness standards in accordance with AR 40-501 during his period of service. Hence, he is not recommended for a referral to the DES.  
 
BOARD DISCUSSION: 
 
1.  After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief was not warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for clemency in determining  discharge upgrade requests. The Board considered the misconduct and whether there was sufficient evidence of mitigating circumstances to weigh in favor of clemency determination.  The Board noted the applicant’s reference to his rating from the Department of Veterans Affairs. Veterans Affairs and DoD operate under separate laws, policies and guidance. The VA primarily assesses the degree of disabling conditions to determine compensation and employment potential. The Army assesses for fitness for duty; therefore, there is not necessarily a correlation between VA disability ratings and those of the Army. After due consideration of the request, the Board determined that the evidence presented does not meet the burden of proof in determining the existence of an error or injustice and a recommendation for relief is not warranted.  
2.  Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 
 
 
 
 
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: 
 
The Board determined 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. 
 
 
  12/12/2023

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 30 July 1999 is missing an award that does not require Board action. As a result, amend the DD Form 214 by adding to item 13 (Decoration, Medals, Badges, Citations, and Campaign Ribbons) the Korea Defense Service Medal. 
 
 
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, 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 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 
 
 a.  Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 
 
 b.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: 
 
  (1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. 
 
  (2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 
 
4.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service.  However, 
an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA does not have the authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  These two government agencies operate under different policies.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 
 
5.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. The version in effect at that time provided that: 
 
 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.  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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 
 
 c.  Chapter 10 of that regulation 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 discharge was normally considered appropriate.  
 
6.  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 DRBs and BCM/NRs 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. 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. 
 
7.  The Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and BCM/NR on 25 July 2018, 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 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. 
 
//NOTHING FOLLOWS//