IN THE CASE OF: 

		BOARD DATE: 29 November 2023

		DOCKET NUMBER: AR20230004317


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions 
(UOTHC) discharge to under honorable conditions, general.

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

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge)
*	Applicant Sister’s Statement
*	Medical Documents 
*	Service Documents
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) (two)
*	Photo
*	Character Letters (four)

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, through his sister, states:

     a.  He suffered a Traumatic Brain Injury (TBI) on 7 September 1997 due to being 
involved in a car accident while being active in the Army. He is requesting full veterans 
benefits, and this can only be attained through the upgrade of the reason for his 
discharge. Since his accident he can't make rational decisions on his own. Due to his 
TBI he has difficultly performing normal life activities. The applicant suffers with 
headaches, muscle spasms, back pain, difficulty walking, and balancing which causes 
frequent falls, depression, and anxiety. He struggles to keep gainful employment due to 
his TBI and the effect that it has on his daily life. There has been more than a three-year 
delay in appealing this decision because his sister  wasn't aware of this decision. She is 
trying to assist the applicant with receiving benefits. 
     b.   statement states the applicant suffered a TBI due to being involved in a serious 
car accident that forever changed his life as well as their entire family. Prior to this life 
altering event the applicant was her big brother that she looked up to and expected to 
do great things with his life. He was funny, caring, companionate, artistic, and very big 
on family. There was swelling on his brain and damage to his lower extremities. He was 
put into a medically induced coma. He had to go through speech and occupational 
therapy to learn to walk and perform everyday life duties. He hasn't had a steady 
residence for more than about a year since his TBI. He's stayed with their parents, in 
homeless shelters, slept on the subway in NY, lived in temporary rooming houses, and 
even stayed at an abandoned apartment building with no lights or heat. 

     c.  He has a problem keeping a steady job due to his mental and physical struggles. 
He still walks with a limp and has trouble with his balance. She has witnessed him take 
hard falls several times just losing his footing where most people would be able to catch 
their balance. He mentions constant pain in his legs as well as his lower back.

3.  The applicant's complete military records are not available for review; therefore, this 
case is being considered based on sparse records and the documents he provides.

4.  The applicant enlisted in the Regular Army on 9 September 1996 for three years. His 
military occupational specialty was 88M (Motor Transport Operator).

5.  The applicant's record is void of a separation packet containing the specific facts and 
circumstances surrounding his discharge processing however, Orders 6-42, dated 
6 January 1998, issued by Headquarters, 3rd Infantry Division (Mechanized), Fort 
Stewart, GA, transferred him to the separation point for transition processing and 
discharge under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations-Enlisted Personnel).

6.  Orders 12-42 (amended), dated 12 January 1998, issued by Headquarters, 24th 
Infantry Division (Mechanized), Fort Stewart, show the applicant had not completed at 
least 90 percent (%) of his initial contractual active-duty obligation. 

7.  Orders 13-48 (amended), 13 January 1998, Headquarters, 24th Infantry Division 
(Mechanized), Fort Stewart, shows the applicant’s date of discharge unless changed or 
rescinded: 16 January 1998.

8.  The applicant was discharged on 16 January 1998. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he was discharged under the provisions 
of AR 635-200, Chapter 10, in lieu of trial by court-martial. He was assigned Separation 
Code KFS with Reentry Code 3. His service was characterized as UOTHC. He 
completed 1 year, 7 months, and 8 days of net active service. His awards included the 
National Defense Service Medal and the Army Service Ribbon.
9.  The issuance of a discharge under the provisions of AR 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.

10.  The applicant provides:

     a.  A copy of his DD Form 214 and service and records as discussed above. He also 
provides a photo.

     b.  A portion of his service medical records and a Veterans Administration diagnosis 
of functional and cognitive deficits secondary to TBI.

     c.  Character letters that attest to the applicant’s having been involved in a car 
accident and suffering a TBI; and the daily mental and physical struggles associated 
with this accident. 

     d.  His parents state the ‘jaws of life” were used to cut their son free from the vehicle. 
They remember the applicant being active in sports and he loved basketball. He has 
both physical and mental scars. His short-term memory has deteriorated, he forgets 
people and places, he cannot control his emotions, gets frustrated very easily and has a 
difficult time with relationships. Loud sudden noises frighten him, his balance is off, he 
falls easily and suffers from headaches and muscle spasms, anxiety, and depression.

     e.  His maternal cousin states, at times the applicant appears detached from reality, 
seeming not to realize what it will actually take for him to truly attain and maintain his 
own independence. She distinctly recalls a time where their family didn't know where he 
was physically located as contact with the family had been abruptly terminated without 
notice or explanation. She believes he is aware of his limitations; however, he is too 
proud to ask and/or to seek the needed assistance and support he so desperately 
needs. The difference in his physical and mental functioning before and after the 
accident is analogous to the difference between night and day and it's difficult to put into 
words.

     f.  A friend states it’s as though certain processes do not cross his mind. The TBI 
made it difficult for the applicant to function and be successful as well as take care of 
himself. She has experienced the severe pain within his body stemming from his injuries 
years ago. His mental ramifications have altered the person she met so many years 
ago. She does not think that the applicant is even aware sometimes of the mental 
disconnect that he has in certain situations.

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

12.  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 16 January 
1998 discharge characterized as under other than honorable conditions.  He states in 
part:
“This correction should be made because [Applicant] suffered a Traumatic Brain 
injury while being active in the Army on September 7, 1997.  Since his accident 
he can't make rational decision on his own.  Due to TBI he has difficultly 
performing normal life activities. 
[Applicant] suffers with headaches, muscle spasms, back pain, difficulty walking 
and balancing which cause frequent falls, depression, and anxiety.  [Applicant] 
struggles to keep gainful employment due to his TBI and the effects that it has on 
his daily life.
Please see the attached information for more detailed explanations and medical 
documentation.”
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His DD 214 for the period of Service under consideration 
shows he entered the regular Army on 9 September 1996 and was discharged on 16 
January 1998 under the separation authority provided chapter 10 of AR 635-200, Active 
Duty Enlisted Administrative Separations (26 June 1996): Discharge in Lieu of Trial by 
Court-Martial.  The DD 214 show no lost time under 10 USC § 972 or period of Service 
in a hazardous duty pay area.
    d.  A 27 October 1997 interim discharge summary from the VA medical Center in 
Richmond, VA, shows the applicant had been in their facility since 29 September 1997 
with the diagnosis of “Functional and cognitive deficits secondary to traumatic brain 
injury:”
“HISTORY OF PRESENT ILLNESS: The patient is a 20-year-old unrestrained 
driver status post motor vehicle accident with roll over at high speed and 
prolonged extraction on 9-8-97 resulting in traumatic brain injury.  At the scene 
the patient had possible loss of consciousness, and unresponsiveness.  Glasgow 
coma scale was 3 by Emergency Medical Service.  
[** NOTE:  The Glasgow Coma Score (GCS) is used to objectively describe the 
extent of impaired consciousness in all types of acute medical and trauma 
patients. It is composed of three parameters: best eye response (E), best verbal 
response (V), and best motor response (M), and is scored between 3 and 15, 3 
being the worst and 15 being normal.]
He had emergent right needle thoracotomy and cricoidectomy performed in the 
field.  Positive posturing noted at the scene.
Chest tube was removed on 9-10-9. Inferior vena cava filter placed on 9-11-97 
status post tracheotomy placement and removal; status post percutaneous 
endoscopic gastrostomy tube placement and removal. 
At the time of admission, the patient also had increased agitation. Head CAT 
scan showed multiple cerebral contusions.  On 9-8-97 and 9-11-97 head CAT 
scan showed posttraumatic parenchymal hemorrhage. No compression.
FUNCTIONAL STATUS:  Premorbidly, independent.  At present the patient is 
independent in dressing, grooming and bathing and requires minimal assistance.  
Money management -- basically is independent.  
Laundry supervision, computer, basic word processor minimal assistance.  
Verbal cues, mobility. Independent bed mobility. Independent sit-stand.  Transfer 
from bed to wheelchair independently.  Independent to toilet. 
Ambulation 200 feet with Canadian crutches. Contact guard supervision. 
Ambulation with walker supervised.”
    e.  The applicant continued in therapy and appeared to have returned to functional 
status as seen in a 7 November 1997 Vocational Evaluation Report:
“Medical Status: Currently, Mr. [Applicant] is medically stable and independent in 
ambulation and Activities of Daily Living.  The patient has had significant 
improvement in cognition and functional status since admission to the hospital ...  
The patient was incontinent at the time of admission and is now continent of 
bowel and bladder.
Tests Administered: GATB; RA VEN Progressive Matrices; SRA/PRT; and Wide 
Range Achievement Test-3 (WRAT-3), Wide Range Interest-Opinion Test 
(WR1OT).
Summary and Recommendations:
Based on Mr.[Applicant]'s achievement and aptitude scores, he seems to be 
functioning in the average range.  His high Spatial Aptitude and Form Perception 
scores are consistent with his expressed fondness for Art Appreciation.
Mr. [Applicant]'s current educational objective is to return to college and pursue a 
degree in Mass Communications, with an emphasis in Broadcast Journalism. 
With his previous college experience and the scores obtained on his vocational 
evaluation, it appears that Mr. [Applicant] should be able to continue his 
educational endeavors. Mr. Cruse has submitted VA Form 1900 (Chapter 31) for 
vocational rehabilitation benefits.”
    f.  His repeat neuropsychological assessment was completed on 18 November 1997 
and consisted of twelve tests.  While is showed marked improvement and “no evidence 
in this exit test situation to suggest less than full mental competency at present for this 
fortunate young man,” it revealed some mild residual effects from his injury:
“EXIT testing: significant improvement
The exit test battery found significant improvement in all areas tapped by the 
brief battery used at discharge.  Manual motor performance was free of 
significant difficulty in accuracy or speed.  Mental response times and accuracy 
on the Vigil task were recovered to normal level as well as pattern, with very 
good, sustained attention and concentration.
Verbal memory had recovered from a seriously impaired level to a performance 
with only mild signs of impairment - not fully clear of errors, but greatly improved 
from the October examination. "Naming" functions showed a higher overall 
score, and the amount of qualitative difficulty such as circumlocution and 
semantic/phonemic problems was much reduced, although still not entirely 
absent and suggesting that mild TBI residua still remain in this area. 
Fluency of productive thought in both verbal and nonverbal tasks is now in 
Superior range, not merely "normal".
COMMENT
Private [Applicant} has shown a rapid and very significant recovery during his 
rehabilitation program as an inpatient. Testing has documented progress from 
seriously disabled to being ready for return to functional outpatient status. 
Some areas of mild residual difficulty remain.  These should not preclude return 
to Limited Duty assignment from a mental/cognitive function standpoint. There is 
no evidence in this exit test situation to suggest less than full mental competency 
at present for this fortunate young man.
    g.  Neither the applicant’s separation packet nor documentation addressing his 
voluntary administrative separation was included in the supporting documents or 
uploaded into iPERMS.  
    h.  JLV show the applicant receives humanitarian care as a non-service-connected 
Veteran.  A 10 December 1998 follow-up psychology encounter reported he was doing 
well in college:
“Reviewed Nov test results with Mrs. [Applicant].  Patient now doing well in 
college coursework according to mother: Is being followed by local TBI specialist 
in, studies via computerized gait/balance analysis showing diminished but 
continuing residual balance deficit.
Reported improvement in school performance confirms shift in list learning 
scores noted here between Spring and Fall retests, with retention/storage 
patterns for consolidation of short-term memory becoming WNL between these 
examinations.

    i.  There is no evidence the applicant had a mental health or other medical condition 
which would have then contributed to or would now mitigate his UCMJ violation; or that 
would have failed the medical retention standards of chapter 3, AR 40-501, Standards 
of Medical Fitness, and been a cause for referral to the DES prior to his discharge.  

    j.  In addition, without knowledge of the action(s) which led him to request a discharge 
in lieu of trial by court-martial, a recommendation for possible mitigation under liberal 
consideration policies is not possible.

    k.  It is the opinion of the ARBA medical advisor that a discharge upgrade based 
upon a medical condition is not warranted.

Kurta Questions:
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the 
discharge?  NO
    (2)  Did the condition exist or experience occur during military service?  N/A
    (3)  Does the condition or 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 the medical advisory the Board 
concurred with the advising official finding the applicant’s contentions for a discharge 
upgrade based upon a medical condition is not warranted.  The Board noted the 
medical opine found no evidence the applicant had a mental health or other medical 
condition which would have then contributed to or would now mitigate his UCMJ 
violation; or that would have failed the medical retention standards. 

2.  The Board found insufficient evidence of in-service mitigating factors for the 
misconduct. The Board determined DES compensates an individual only for service 
incurred condition(s) which have been determined to disqualify him or her from further 
military service.  The DES has neither the role nor the authority to compensate service 
members for anticipated future severity or potential complications of conditions which 
were incurred or permanently aggravated during their military service; or which did not 
cause or contribute to the termination of their military career. Based on the evidence, 
the Board determined that the character of service the applicant received upon 
separation was not in error or unjust. The Board denied relief.


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 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.  Title 10, USC, Section 1556, provides the Secretary of the Army shall ensure that an 
applicant seeking corrective action by ARBA is provided a copy of all correspondence 
and communications, including summaries of verbal communications, with any agencies 
or persons external to agency or board, or a member of the staff of the agency or 
Board, that directly pertains to or has material effect on the applicant's case, except as 
authorized by statute.

3.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.

	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 Soldiers whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 provided 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, a UOTHC discharge was normally considered appropriate. 

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; TBI; 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230004317


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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