IN THE CASE OF: 

		BOARD DATE: 22 November 2023

		DOCKET NUMBER: AR20230004159


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 
characterization of service to honorable.

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

*	DD Form 149 (Application for the Review of Discharge)
*	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, the Army did not factor post-traumatic stress disorder (PTSD) 
into the chain of actions that led to his discharge. The incident took place after his unit's 
combat deployment to the Gulf War, and he believes PTSD was a significant factor. The 
Army did not offer him a medical option for his PTSD, and he thinks this would have 
helped him. After serving his country, a review of the past, and the incident that led to 
his discharge, he feels PTSD should have been a subject of focus and should have 
been pursued on his behalf.

3.  The complete facts and circumstances surrounding his discharge are not available 
for review. However, his record contains a dully constituted DD Form 214 that shows 
the following entries of information:

	a.  The applicant enlisted in the Regular Army on 29 August 1990, completed 
training and was awarded military occupational specialty 94B (Food Service Specialist).

	b.  On 17 December 1991, the applicant was discharged under the provisions of 
Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for 
the good of the service in lieu of trial by court-martial, with separation code “KFS” and a 
reentry code of “3.”
	c.  He completed 1 year, 3 months, and 19 days of net active service with 10 months 
and 28 days of foreign service during the covered period.

	d.  Block 18 (Remarks) the entry “SERVICE IN SWA 9 MAR 1991 TO 20 JUL 1991”

4.  There is no indication the applicant petitioned to the Army Discharge Review Board 
for an upgrade of his discharge within that Boards 15-year Statute of limitations.

5.  The issuance of a discharge under the provisions of Army Regulation 635-200, 
Chapter 10, required the applicant to have requested from the Army – voluntarily, 
willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all 
requirements of law and regulation were met, and the rights of the applicant were fully 
protected throughout the separation process. No evidence that would indicate the 
contrary was provided.

6.  In reaching its determination, the Board can consider the applicant’s petition, 
arguments and assertions, and service record in accordance with the published equity, 
injustice, or clemency guidance.

7.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an upgrade of his under other 
than honorable conditions (UOTHC) characterization of service to honorable. The 
applicant contents that he experienced PTSD, which mitigates his misconduct 
    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The 
complete facts and circumstances surrounding the applicant’s discharge are not 
available for review. However, his record contains a DD Form 214; 2) The applicant 
enlisted in the Regular Army on 29 August 1990; 2) There was evidence the applicant 
served in Southwest Asia from 09 March-20 July 1991; 3) The applicant was discharged 
on 17 December 1991, Chapter 10, for the good of the service in lieu of trial by court-
martial. His service was characterized as UOTHC.
    c.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s limited military service record. The VA’s Joint Legacy 
Viewer (JLV) was also examined. No additional behavioral health documentation was 
provided.
    d.  The applicant asserts he experienced PTSD while on active service, which was a 
mitigating factor in the circumstances that resulted in his separation. There was 
insufficient evidence beyond self-report the applicant was experiencing symptoms of 
PTSD while in active service. There is also insufficient evidence concerning the nature 
of the events and circumstances surrounding the applicant’s discharge. A review of JLV 
was void of medical documentation, and the applicant did not provide any civilian 
medical documentation.
    e.  Based on the available information, it is the opinion of the Agency BH Advisor that 
there is insufficient evidence to provide an adequate opine in regard to the applicant’s 
contention that he was experiencing a mental health condition, which mitigates his 
misconduct. Specifically, there is insufficient information about the circumstances which 
lead to his discharge, and there is insufficient evidence beyond self-report the applicant 
was experiencing PTSD at the time of his active service. However, the applicant 
contends he was experiencing a mental health condition that mitigated his misconduct, 
and per Liberal Consideration his contention is sufficient for the board’s consideration.     
Kurta Questions
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the 
discharge? N/A. Based on the available information, it is the opinion of the Agency BH 
Advisor that there is insufficient evidence to provide an adequate opine in regard to the 
applicant’s contention that he was experiencing a mental health condition, which 
mitigates his misconduct. Specifically, there is insufficient information about the 
circumstances which lead to his discharge, and there is insufficient evidence beyond 
self-report the applicant was experiencing PTSD at the time of his active service. 
However, the applicant contends he was experiencing a mental health condition that 
mitigated his misconduct, and per Liberal Consideration his contention is sufficient for 
the board’s consideration.   

    (2)  Did the condition exist or experience occur during military service?  N/A

    (3)  Does the condition experience actually excuse or mitigate the discharge? N/A


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not 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 
concurred with the advising official finding insufficient information about the 
circumstances which lead to his discharge, and there is insufficient evidence beyond 
self-report the applicant was experiencing PTSD at the time of his active service.  

2.  The Board found insufficient evidence of in-service mitigating factors to overcome 
the misconduct. The Board noted the applicant provided no post service achievements 
or character letters of support that attest to his honorable conduct for the Board to 
consider. In addition, the Board agreed the applicant has not demonstrated by a 
preponderance of evidence an error or injustice warranting the requested relief, 
specifically an upgrade of the under other than honorable conditions (UOTHC) 
discharge to a honorable discharge.  Therefore, the Board denied relief.

3.  This board is not an investigative body.  The Board determined despite the absence 
of the applicant’s separation records, they agreed the burden of proof rest on the 
applicant, however, he did not provide any supporting documentation and his service 
record has insufficient evidence to support the applicant contentions of a behavioral 
health issues.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.  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. 

3.  Army Regulation 635-200, in effect at the time, set forth the primary authority for 
separating enlisted personnel. 

	a.  Chapter 10 states in part, a member who has committed an offense or offenses, 
the punishment for any of which, under the Uniform Code of Military Justice (UCMJ) and 
the Manual for Court-Martial, include bad conduct or dishonorable discharge, may 
submit a request for discharge in lieu of trial by court-martial. In addition, the request for 
discharge may be submitted at any stage in the processing of the charges until the 
court-martial convening authority's final action on the case. Commanders will also 
ensure that a member will not be coerced into submitting a request for discharge in lieu 
of trial by court-martial. The member will be given a reasonable time (not less than 72 
hours) to consult with a consulting counsel and to consider the wisdom of submitting 
such a request for discharge. 

	b.  An honorable discharge is a separation with honor. The issuance of an honorable 
discharge certificate is predicated upon proper military behavior and proficient 
performance of duty during the member's current enlistment or period of obligated 
service with due consideration for the member's age, length of service, grade, and 
general aptitude. Where a member has served faithfully and performed to the best of his 
ability, and there is no derogatory information in his military record, he should be 
furnished an honorable discharge certificate.

	c.  An under honorable conditions (general), discharge is a separation from the Army 
under honorable conditions. It is issued to a member whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	d.  An under other than honorable discharge is an administrative separation from the 
service under conditions other than honorable. It may be issued for misconduct and in 
lieu of trail by court-martial.

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 post-traumatic stress 
disorder; 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 to 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. 

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military DRBs and 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 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//
ABCMR Record of Proceedings (cont)	AR20230004159


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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