IN THE CASE OF: 

		BOARD DATE: 9 November 2023

		DOCKET NUMBER: AR20230004678


APPLICANT REQUESTS:  Reconsideration of his previous request for upgrade of his 
under other than honorable conditions (UOTHC) discharge to honorable, and a 
corresponding narrative reason for separation and separation code. Additionally, he 
requests a personal appearance before the Board.

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

*	DD Form 293 (Application for the Review of Discharge) (triplicate)
*	Medical Documents

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 AR20100027250 on 5 May 2011.

2.  The applicant states he would like an upgrade of his UOTHC discharge to receive 
Veterans Affairs (VA) benefits and employment.

3.  The applicant enlisted in the Regular Army on 10 June 1980 for four years. His 
military occupation was 11B (Infantryman).

4.  He served in Germany from 9 November 1981 through 5 February 1983.

5.  Before a special court martial on 6 February 1983, the applicant was found guilty of 
selling hashish between June 1982 and 31 July 1982 and wrongful possession of 
hashish between on or about February 1982 to September 1982 and on or about 
13 August 1982. The court sentenced him to reduction to private/E-1, forfeiture of 
$382.00 pay per month for three months and confinement at hard labor for three 
months. The sentence was adjudged on 6 February 1983

6.  He was transferred to the United States Army Correctional Activity (USACA) at Fort 
Riley, Kansas on 6 February 1983 to serve his confinement.

7.  The applicant was present for duty on 3 May 1983 his sentence was deferred, and 
he was in a nonconfined status.

8.  He was counseled on 3 March 1983 regarding his assignment to the U.S. Army 
Retraining Brigade, Fort Riley, KS, due to his court martial. He was assigned to this unit 
for purposes of retraining and professional observation, evaluation, and counseling on 
an individual and small group level in order that he may be better motivated and 
prepared for continued military duty, or, if appropriate, return to civilian life.

9.  The applicant received nonjudicial punishment on 11 March 1983 under Article 15 of 
the Uniform Code of Military Justice for being derelict in the performance of his duties 
as barracks orderly by sleeping on duty on or about 10 March 1983. His punishment 
consisted of forfeiture of $50.00 pay per month for one moth (suspended), extra duty 
and restriction. The suspension of punishment of forfeiture of $50.00 was vacated on 
15 March 1983.

10.  The applicant's commander notified him on 4 April 1983, that he was initiating 
action to discharge him from the service under the provisions of Army Regulation (AR)
635-200 (Personnel Separations-Enlisted Personnel), Chapter 14, for misconduct. He 
cited as the basis for his recommendation the applicant's disciplinary record prior to his 
arrival at the USACA, his disciplinary record after his arrival, and his unsatisfactory 
performance.

11.  The applicant consulted with legal counsel on 6 April 1983 and was advised of the 
basis for his separation and the procedures and rights that were available to him. He 
waived consideration of his case by a board of officer, a personal appearance before 
the board of officers and representation by counsel.

     a.  He acknowledged that he may expect to encounter substantial prejudice in 
civilian life if discharged under honorable conditions (general). He further understood 
that as a result of an UOTHC discharge he may be ineligible for many or all benefits as 
a veteran under both Federal and States laws and he may expect to encounter 
substantial prejudice in civilian life. 

     b.  He elected to submit a statement in his own behalf, in his statement he asserted 
that he had tried to do everything possible to complete his training but apparently his 
counselor did not think so. He was found sleeping on duty. He went on to state that he 
planned on getting married and supporting a family; however, a bad discharge would 
destroy his chances. He requested that he be given at least a General Discharge.

12.  The separation authority approved the recommendation for discharge on 12 April 
1983 and directed that the applicant be issued an UOTHC Discharge Certificate.

13.  The applicant waived a medical examination in conjunction with separation on or 
about 14 April 1983.

14.  The applicant was discharged on 15 April 1983. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he was discharged under the provisions 
of AR 635-200, Chapter 14, for misconduct- pattern of misconduct. He was assigned 
Separation code JKM(JKE) with Reenlistment Code 3B. His service was characterized 
as UOTHC. He was credited with 2 years, 9 months, and 11 days of net active service. 
He had lost time from 6 February 1983 to 2 March 1983.

15.  On 16 May 1984, the Army Discharge Review Board determined he was properly 
and equitably discharged and denied his request for a change in the character and/or 
reason of his discharge.

16.  On 5 May 2011, the ABCMR determined the evidence presented did not 
demonstrate the existence of a probable error or injustice. Therefore, the Board 
determined that the overall merits of this case were insufficient as a basis for correction 
of the records of the applicants and denied his request.

17.  The applicant provides medical documents that show chronic post-traumatic stress 
disorder (PTSD) and other mental health issues.

18.  Soldiers are subject to separation under the provisions AR 635-200, Chapter 14, for 
misconduct. A discharge UOTHC is normally appropriate for a Soldier discharged under 
this chapter. However, the separation authority may direct a general discharge if such is 
merited by the overall record.

19.  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. 

20.  MEDICAL REVIEW:

    a.  Background: The applicant is requesting reconsideration of his previous request 
for upgrade of his under other than honorable conditions (UOTHC) discharge to 
honorable, and a corresponding narrative reason for separation and separation code. 
The applicant asserts that PTSD and other mental health are mitigating factors in his 
misconduct and discharge.  
    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Below is a brief summary of information pertinent to this 
advisory: 
*	Below references are summarized in his previous consideration by board on 5 
May 2011. 
*	The applicant enlisted in the Regular Army 10 June 1980.  
*	Before a special court marital on 6 February 1983, the applicant was found guilty 
of selling hashish between June 1982 and 31 July 1982 and wrongful possession 
of hashish between on or about February 1982 to September 1982 and on or 
about 13 August 1982. The court sentenced him to reduction to private/E-1, 
forfeiture of $382.00 pay per month for three months and confinement at hard 
labor for three months. The sentence was adjudged on 6 February 1983
*	He was transferred to the United States Army Correctional Activity (USACA) at 
Fort Riley, Kansas on 6 February 1983 to serve his confinement.
*	The applicant was present for duty on 3 May 1983 his sentence was deferred, 
and he was in a nonconfined status.
*	He was counseled on 3 March 1983 regarding his assignment to the U.S. Army 
Retraining Brigade, Fort Riley, KS, due to his court martial.
*	The applicant received nonjudicial punishment on 11 March 1983 for being 
derelict in the performance of his duties as barracks orderly by sleeping on duty 
on or about 10 March 1983.
*	The applicant's commander notified him on 4 April 1983, that he was initiating 
action to discharge him under AR 635-200, Chapter 14, for misconduct. He cited 
as the basis for his recommendation the applicant's disciplinary record prior to his 
arrival at the USACA, his disciplinary record after his arrival, and his 
unsatisfactory performance. The recommendation was approved. 
*	The applicant was discharged on 15 April 1983 with an UOTHC characterization 
of service. 
*	ADRB denied his upgrade request on 16 May 1984. ABCMR denied his upgrade 
on 5 May 2011. 

    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 293, 
ABCMR Record of Proceedings (ROP), documents from his service record and 
separation, medical documents and previous application to the board. The VA electronic 
medical record and DoD health record were reviewed through Joint Longitudinal View 
(JLV). Lack of citation or discussion in this section should not be interpreted as lack of 
consideration. 

    d.  The applicant asserts that PTSD and other mental health mitigate his misconduct. 
He reported applying to gain VA benefits and employment. The applicant’s time in 
service predates use of electronic health records (EHR) by the Army, hence no EHRs 
are available for review. His service record and supporting documents did contain his 
service treatment records (STR), though there was no indication of a mental health 
concern. His periodic medical examination completed 6 May 1981 indicated no 
psychiatric concerns with a profile of 111111, though in the applicant’s portion he did 
indicate some nervous troubles. The applicant waived a medical examination in 
conjunction with separation on or about 14 April 1983. No other records were provided 
to substantiate his claim. 

    e.  Per the applicant’s VA EHR, he is not service connected, though given the 
characterization of his discharge, he would not typically be eligible for most VA benefits. 
He has been engaged with the VA since December 2022, and with mental health care 
through the VA since February of 2023. He has been diagnosed with alcohol use 
disorder, PTSD with panic attacks, major depressive disorder – recurrent – chronic 
(MDD), and dysthymic disorder. In his initial appointment with mental health 16 
February 2023, the applicant reported significant childhood physical and sexual abuse. 
He noted an encounter with his father after he got out of the Army, where his dad 
threatened to shoot him (which triggered old memories of his dad shooting his mother 
and previously shooting and killing the applicant’s dog to hurt him). He noted this 
encounter is what set off his PTSD symptoms. However, there is also indication that his 
trauma symptoms and mental health concerns started in childhood. Per a psychiatric 
encounter 12 May 2023, the applicant has been diagnosed with PTSD and bipolar 
disorder by his civilian/private psychiatrist. He has engaged in substance abuse 
treatment, individual and group therapy and medication management. Through review 
of JLV, this applicant did have “Community Health Summaries and Documents” 
available. His records indicate a diagnosis of depression and generalized anxiety 
disorder, with him being diagnosed in 2011.  
    f.  It is the opinion of the Agency Behavioral Health Advisor that there is minimal 
evidence, outside of self-report, to indicate the applicant had a mitigating condition 
during his time in service. The applicant has since been diagnosed with potentially 
mitigating conditions to include PTSD, MDD and dysthymia; however, they are not 
service connected. Though, per Liberal Consideration guidance, his contention is 
sufficient to warrant the Board’s consideration. However, the severity and nature of a 
portion of his misconduct would not be mitigated. 
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 contends he had mitigating 
conditions (PTSD and other mental health). 
    (2)  Did the condition exist, or experience occur during military service? Yes. The 
applicant does assert a mitigating condition was present during his time in service. 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? 
Partial. There is minimal evidence beyond self-report that the applicant was 
experiencing a mental health condition (or conditions) at his time of misconduct. Medical 
records approximately 39 years later indicate he has been diagnosed with several 
potentially mitigating mental health conditions, to include PTSD, MDD, and dysthymia. 
While there is no contemporaneous evidence the applicant had a mental health 
condition while in the service, the applicant has since reported significant trauma as a 
child that led to ongoing mental health symptoms, to include PTSD. Hence, it’s more 
likely than not that at least some trauma symptoms were present during his time in 
service. Of note, self-medicating with substances, and difficulty with sleep and low 
energy, are consistent with the natural history and sequalae of PTSD and depressive 
symptoms. Hence, there is a nexus between his asserted condition(s) and a portion of 
the misconduct that led to his discharge. However, a significant portion of the 
misconduct that led to him being discharged and incarcerated is the distribution of 
drugs. Distribution is not a part of the natural history and sequalae of PTSD nor 
depression. There is no nexus between his asserted diagnoses, and this behavior. 
Hence, at most a partial mitigation is recommended for his misconduct, with the 
exception of the distribution which is not mitigated.


BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, a medical review, and published Department of Defense 
guidance for liberal consideration of discharge upgrade requests. The Board considered 
the applicant's statement, his record of service to include deployment, the frequency 
and nature of his misconduct and the reason for his separation. The Board considered 
the applicant's PTSD claim and the review and conclusions of the ARBA BH Advisor. 
The applicant provided no evidence of post-service achievements or letters of reference 
in support of a clemency determination. The Board found insufficient evidence of in-
service mitigating factors and concurred with the conclusion of the medical advising 
official regarding his misconduct not being only partially mitigated by behavioral health 
conditions.  Based on a preponderance of the evidence, the Board determined the 
character of service the applicant received upon separation was not in error or unjust.


?
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 that the overall merits of this case are 
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number 
AR20100027250 on 5 May 2011.
	 
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 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.

2.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins 
its consideration of each case with the presumption of administrative regularity, which is 
that what the Army did was correct.  
     a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  

     b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right 
to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

3.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 
The version in effect at the 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. 

     c.  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 
merited by the Soldier's overall record.

4.  AR 635-5 (Separation Documents), states, the DD Form 214 is a summary of the 
Soldier's most recent period of continuous active duty. It provides a brief, clear-cut 
record of all current active, prior active, and prior inactive duty service at the time of 
release from active duty, retirement, or discharge. The information entered thereon 
reflects the conditions as they existed at the time of separation.

	a.  Block 24 (Character of Service) characterization or description of service is 
determined by directives authorizing separation.

	b.  Block 26 (Separation Code) Obtain correct entry from AR 635–5–1, which 
provides the corresponding separation program designator code for the regulatory 
authority and reason for separation.

	c.  Block 28 (Narrative Reason for Separation) is based on regulatory or other 
authority and can be checked against the cross reference in Army Regulation 635–5–1.

5.  AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific 
authorities (regulatory or directive), reasons for separating Soldiers from active duty, 
and the separation codes to be entered on the DD Form 214. It states that the 
separation code JKE is assigned to enlisted Soldiers separated under the provisions of  
paragraph 14, of AR 635-200, misconduct-pattern of misconduct.

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 
Discharge Review Boards (DRB) and Service 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 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 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. 

7.  The Under Secretary of Defense (Personnel and Readiness) issued guidance to 
Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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//
ABCMR Record of Proceedings (cont)	AR20230004678


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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