IN THE CASE OF: 

		BOARD DATE: 6 July 2023

		DOCKET NUMBER: AR20230000014


APPLICANT REQUESTS:

*	honorable physical disability separation in lieu of under other than honorable 
conditions discharge for the good of the service-in lieu of court-martial
*	personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Child and Family Therapy Center Psychiatric Evaluation, 6 August 1993
*	Child and Family Therapy Center Preliminary Assessment and Plan,  
26 August 1993
*	Child and Family Services Therapist’s letter, 10 September 1993
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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:

     a.  He is requesting a change in his discharge from under other than honorable 
conditions to medical. He has post-traumatic stress disorder (PTSD) prior to entering 
the Army. He was not offered any assistance for his disability and believes that the 
outcome would have been different had he been offered treatment.

     b.  His wife had contacted a group home where he previously lived and requested 
his records. They received his records showing a counselor’s abuse. He had no idea.

3.  The applicant enlisted in the Regular Army on 24 June 1999.

4.  A DA Form 4187 (Personnel Action) shows the applicant’s duty status changed from 
dropped from unit rolls (DFR) to present for duty (PDY)/ returned to military control on 
4 March 2001.

5.  A DD Form 458 (Charge Sheet) shows on 8 March 2001, the applicant was charged 
with two specifications of being absent without authority (AWOL) on the following 
occasions:

*	from 7 November 2000 through 8 November 2000
*	from 1 December 2000 through 4 March 2001

6.  On 16 March 2001, the applicant voluntarily requested discharge for the good of the 
service under the provisions of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), chapter 10, based on charges preferred against him under the 
Uniform Code of Military Justice (UCMJ) which authorize the imposition of a bad 
conduct or dishonorable discharge. He acknowledged having been afforded the 
opportunity to consult with counsel. He acknowledged understanding he may be 
discharge under other than honorable conditions and that he may expect to encounter 
substantial prejudice in civilian life. He was advised of his right to submit statements in 
his own behalf, but declined to submit statements with his request. He indicated he did 
not desire a physical evaluation prior to separation.

7.  On 16 March 2001, the applicant’s immediate commander indicated the applicant 
was charged with two specifications of AWOL totaling 94 days, ending with his 
apprehension by civilian authorities. The applicant had become disillusioned with the 
military and his retention was not in the best interest of the Army. He recommended 
approval of the request with an under other than honorable conditions discharge.

8.  An Office of the Staff Judge Advocate, U.S. Army Field Artillery Center and Fort Sill 
memorandum, dated 6 November 2001, shows the Chief, Administrative and Civil Law 
Division reviewed the applicant’s request for discharge in lieu of trial by court-martial 
under the provisions of Army Regulation 635-200, chapter 10 and there were no legal 
objections to further processing in accordance with the unit commander’s 
recommendations.

9.  On 7 November 2001, the approval authority directed the applicant’s under other 
than honorable conditions discharge in lieu of trial by court-martial, under the provisions 
of Army Regulation 635-200, chapter 10, and his reduction in rank/grade to private/E-1.

10.  The applicant’s DD Form 214 shows he was discharged under other than 
honorable conditions on 30 November 2001, under the provisions of Army Regulation 
635-200, chapter 10, in lieu of trial by court-martial. He was credited with 2 years, 
2 months, and 3 days of net active service, with lost time from 7 November 2000 
through 7 November 2000 and from 1 December 2000 through 3 March 2001.

11.  The applicant’s available service records from this period do not show:

*	he was issued a permanent physical profile rating
*	he suffered from a medical condition, physical or mental, that affected his ability 
to perform the duties required by his MOS and/or grade or rendered him unfit for 
military service
*	he was diagnosed with a medical condition that warranted his entry into the Army 
Physical Disability Evaluation System (PDES)
*	he was diagnosed with a condition that failed retention standards and/or was 
unfitting

12.  The applicant provided a Child and Family Therapy Center Preliminary Assessment 
and Plan and a Psychiatric Evaluation, dated 6 August 1993 and 26 August 1993, both 
of which show the applicant was diagnosed with PTSD at that age of 12 years old, for 
which he received in-patient treatment.

13.  A Child and Family Services Therapist’s letter, dated 10 September 1993, shows 
the applicant received a psychiatric evaluation and three therapy sessions for a 
diagnoses of PTSD. He presented as nervous, talkative and personable with strong 
symptoms indicating trauma, resulting in a PTSD diagnosis.

14.  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 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 30 
November 2001 discharge characterized as under other than honorable conditions and, 
in essence, a referral to the Disability Evaluation System (DES).  He states:
“I had PTSD prior to entering.  Was not offered any assistance from my disability.  
I believe the outcome would have been different.”
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His DD 214 shows he entered the Regular Army on 24 June 
1999 and was discharged on 30 November 2001 under the separation authority 
provided chapter 10 of AR 635-200, Active Duty Enlisted Administrative Separations (1 
November 2000): Discharge in Lieu of Trial by Court-Martial.  His reentry code of 4 
denotes a non-waiverable disqualification and ineligible for enlistment in the military 
except for certain moral and administration disqualifications (10 U.S. Code § 1553).  
The DD 214 does not show a period of Service in a hazardous duty pay area.
    d.  A Charge Sheet (DD form 458) shows the applicant was charged with absence 
without leave (AWOL) from 7-8 November 2000 and 1 December 2000 thru 4 March 
2001 after he had been apprehended by civilian authorities.  
    e.  On 16 March 2001, the applicant voluntarily requested discharge in lieu of trial by 
court-marital under chapter 10 of AR 635-200.  The garrison commander approved his 
discharge with an under other than honorable characterization of service on 7 
November 2001.  

    f.  Submitted civilian medical documentation shows the applicant was diagnosed with 
PTSD at age 12 (1973) and was treated with counseling.

    g.  The applicant denied having ever being treated for a mental health condition on 
his 13 March 1999 pre-entrance Report of Medical History.   

    h.  JLV shows he is not registered with nor received care from the VA.

    i.  It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor 
a referral of his case to the DES is warranted.

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?
While the condition did exist during his military service, is did not occur during his 
service as the applicant was diagnosed and treated for the condition at age 12.

		(3)  Does the condition or experience actually excuse or mitigate the discharge? 
NO – There is no evidence his PTSD was significantly worsened by his military service 
and so the pre-existing condition, not being service incurred or exacerbated, cannot 
mitigate his periods of absence without leave.

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.

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
applicant was charged with commission of an offense punishable under the UCMJ with 
a punitive discharge. After being charged, he consulted with counsel and requested 
discharge under chapter 10 of AR 635-200. Such discharges are voluntary requests for 
discharge in lieu of trial by court-martial and carry an under other than honorable 
conditions characterization of service. 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 no probative 
evidence any duty incurred medical condition would have failed the medical retention 
standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to the 
applicant’s discharge. Furthermore, there is no evidence that any medical condition 
prevented the applicant from being able to reasonably perform the duties of his office, 
grade, rank, or rating prior to her discharge. Based on a preponderance of evidence, the 
Board determined that the character of service and reason for separation the applicant 
received upon separation were not in error or unjust.
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:	:X	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board found 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.

	 
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 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.  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.  

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (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 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. This guidance does not 
mandate relief, but rather provides standards and principles to guide BCM/NRs in 
application of their equitable relief authority. In determining whether to grant relief on the 
basis of equity, injustice, or clemency grounds, BCM/NRs 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. 

4.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who had committed an offense or offenses for 
which the authorized sentence 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 were preferred. Although an honorable or general 
discharge could be directed, an Undesirable Discharge Certificate would normally be 
furnished to an individual who was discharged for the good of the service.

	b.  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.

	c.  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.

	d.  A discharge under other than honorable conditions (UOTHC) is an administrative 
separation from the service under conditions other than honorable. It may be issued for 
misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial.  When 
a Soldier is discharged UOTHC, the separation authority will direct an immediate 
reduction to the lowest enlisted grade.

5.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability.  The U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 
(Physical Evaluation for Retention, Retirement, or Separation).

	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical 
profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention 
Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and PEB. The purpose of the MEB is to determine whether the service member's 
injury or illness is severe enough to compromise his/her ability to return to full duty 
based on the job specialty designation of the branch of service. A PEB is an 
administrative body possessing the authority to determine whether or not a service 
member is fit for duty. A designation of "unfit for duty" is required before an individual 
can be separated from the military because of an injury or medical condition.  Service 
members who are determined to be unfit for duty due to disability either are separated 
from the military or are permanently retired, depending on the severity of the disability 
and length of military service. Individuals who are "separated" receive a one-time 
severance payment, while veterans who retire based upon disability receive monthly 
military retired pay and have access to all other benefits afforded to military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness. In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating.  
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty. A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

6.  Army Regulation 635-40 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.  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.  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.

7.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent.  
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating of less than 30 
percent.

8.  Title 10, U.S. Code, section 1556 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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 
prescribes the policies and procedures for correction of military records by the Secretary 
of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a 
right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a 
formal hearing whenever justice requires.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230000014


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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