ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 2 April 2021 DOCKET NUMBER: AR20200009594 
APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20160014025 on 28 January 2019. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
Legal Brief, dated 26 March 2020 

. 
Psychological Evaluation, dated 4 February 2020 and 5 March 2020 

. 
Exhibit A – Psychologist’s Professional Résumé 

. 
Exhibit B – Psychologist’sCredentials 


FACTS: 
1. 
Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160014025 on 28 January 2019. 

2. 
The applicant defers his statement to counsel. Counsel states the applicant’s situation warrants review in light of questions about whether he truly had the appropriate decision-making capacity required to address his rights as he did on 13 September 2012, as well as with respect to his prior acts. 

3. 
The applicant was appointed as a Reserve commissioned officer of the Army on 5 August 2002. He entered active duty on 12 November 2002. 

4. 
The applicant served in Iraq from 16 January 2003 to 15 March 2004. He served in Afghanistan from 27 January 2007 to 26 January 2008 and from 3 April 2010 through 2 April 2011. 

5. 
The applicant received a General Officer Memorandum of Reprimand (GOMOR) on 9 March 2012, which stated, in pertinent part: 


a. 
He was being reprimanded for operating a vehicle while under the influence of alcohol on 12 February 2012, and refusing to take and complete a lawfully requested chemical test to measure alcohol content. In addition, he lied to military police officers in an attempt to avoid the consequences of his actions by stating his daughter was home alone. 

b. 
The imposing general officer indicated the reprimand was imposed as an administrative action and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). He was considering filing the reprimand in the applicant's Official Military Personnel File (OMPF). 


6. 
The applicant acknowledged receipt of the GOMOR and submitted a rebuttal statement on 2 April 2012. The GOMOR was filed in his OMPF on 1 May 2012. 

7. 
Court-martial charges were preferred against the applicant on 8 June 2012, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: 


a. 
Charge I: one specification of maiming his spouse by striking her in her mouth with a closed fist causing nerve damage to her teeth, on or about 15 May 2011. 

b. 
Charge II: four specifications of unlawfully striking his spouse on the head or body, with a closed fist or belt, on or about 15 May 2011, 26 December 2009, 1 April 2011, and 30 April 2011. 

c. 
Charge III: one specification of physically controlling a vehicle while drunk, on or about 12 February 2012. 

d. 
Charge IV: four specifications of making a false official statement, with intent to deceive, on or about 12 February 2012 and on or about 2 April 2012. 


8. 
Additional court-martial charges were preferred against the applicant on 6 August 2012, for violations of the UCMJ. His DD Form 458 shows he was charged with stealing 53.33 liters of gasoline and for wrongfully driving with a revoked license, on or about 8 July 2012. 

9. 
The applicant voluntarily submitted his resignation from the Army on 12 September 2012, for the good of the service (in lieu of trial by general court-martial) under the provisions of Army Regulation 600-8-24 (Officer Transfer and Discharges), Chapter 3. This memorandum shows: 

. 
he had not been subjected to coercion with respect to this resignation 

. 
he had been advised of and fully understood the implications of this action 

. 
he had been fully advised and counseled in this matter 

. 
he had been afforded an opportunity to present matters in extenuation, mitigation, and/or defense of his case 

. 
he acknowledged he understood that if his resignation were accepted his service could be considered as being UOTHC 



10. 
The applicant’s commander reviewed, recommended approval, and forwardedthe applicant's request for resignation in lieu of trial by general court-martial. 

11. 
The Deputy Assistant Secretary of the Army (Review Boards) (DASA-RB) accepted the applicant’s resignation on 3 December 2012, for the good of the service in lieu of a general court-martial. The DASA-RB directed the applicant's discharge with a UOTHC characterization of service. 

12. 
The applicant was discharged on 18 December 2012, under the provisions of Army Regulation 600-8-24, paragraph 3-13, in lieu of trial by court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as UOTHC. 

13. 
The applicant provides a psychological evaluation, dated 4 February 2020and 5 March 2020, wherein the examining psychologist’s stated: 


a. 
It does not appear the applicant was provided full and sufficient information by the military personnel assigned to handle his legal charge. Specifically, he was presented with the options of contesting the driving under the influence (DUI) charges or to accept a voluntary discharge under less than honorable conditions. 

b. 
Based on current findings from scientific research on the negative and enduring neurological effects of those who have experienced trauma, the applicant did not possess the mental and/or cognitive capacity to provide his legal informed consent, which by definition is to consider each aspect of the information presented and logically perform a calculation of the expected value of each possible alternative. 


14. The Board should consider the applicant's evidence in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including post-traumatic 
stress disorder (PTSD). The Veteran’s testimony alone, oral or written, may establish 
the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 
15. MEDICAL REVIEW: 
a. 
The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20160014025 on 28 January 2019. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 

b. 
Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160014025 on 28 January 2019. 

c. 
The applicant defers his statement to counsel. Counsel states the applicant’s situation warrants review in light of questions about whether he truly had the appropriate decision-making capacity required to address his rights as he did on 13 September 2012, as well as with respect to his prior acts. 

d. 
The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: 

. 
Legal Brief, dated 26 March 2020 

. 
Psychological Evaluation, dated 4 February 2020 and 5 March 2020 

. 
Exhibit A – Psychologist’s Professional Résumé 

. 
Exhibit B – Psychologist’s Credentials 

e. 
VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. 



f. 
A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were reviewed. 

g. 
The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 5 August 2002 (Reserves) and Active duty on 12 November 2002 and was discharged on 18 December 2012, under the provisions of Army Regulation 600-8-24, paragraph 3-13, in lieu of trial by court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as UOTHC. 

h. 
He was being reprimanded for operating a vehicle while under the influence of alcohol on 12 February 2012, and refusing to take and complete a lawfully requested chemical test to measure alcohol content. In addition, he lied to military police officers in an attempt to avoid the consequences of his actions by stating his daughter was home alone. 

i. 
The imposing general officer indicated the reprimand was imposed as an administrative action and not as punishment under Article 15 of the Uniform Code of 


Military Justice (UCMJ). He was considering filing the reprimand in the applicant's Official Military Personnel File (OMPF). 
j. Court-martial charges were preferred against the applicant on 8 June 2012, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: 
Charge I: one specification of maiming his spouse by striking her in her mouth with a closed fist causing nerve damage to her teeth, on or about 15 May 2011. 
Charge II: four specifications of unlawfully striking his spouse on the head or body, with a closed fist or belt, on or about 15 May 2011, 26 December 2009, 1 April 2011, and 30 April 2011. 
Charge III: one specification of physically controlling a vehicle while drunk, on or about 12 February 2012. 
Charge IV: four specifications of making a false official statement, with intent to deceive, on or about 12 February 2012 and on or about 2 April 2012. 
Additional court-martial charges were preferred against the applicant on 6 August 2012, for violations of the UCMJ. His DD Form 458 shows he was charged with stealing 53.33 liters of gasoline and for wrongfully driving with a revoked license, on or about 8 July 2012. 
k. 
The applicant voluntarily submitted his resignation from the Army on 12 September 2012, for the good of the service (in lieu of trial by general court-martial) under the provisions of Army Regulation 600-8-24 (Officer Transfer and Discharges), Chapter 3. This memorandum shows: 

. 
he had not been subjected to coercion with respect to this resignation 

. 
he had been advised of and fully understood the implications of this action 

. 
he had been fully advised and counseled in this matter 

. 
he had been afforded an opportunity to present matters in extenuation, mitigation, and/or defense of his case 

. 
he acknowledged he understood that if his resignation were accepted his service could be considered as being UOTHC 



l. 
The applicant provides a psychological evaluation, dated 4 February 2020 and 5 March 2020, wherein the examining psychologist’s stated: 


It does not appear the applicant was provided full and sufficient information by the military personnel assigned to handle his legal charge. Specifically, he was 
presented with the options of contesting the driving under the influence (DUI) charges or to accept a voluntary discharge under less than honorable conditions. 
Based on current findings from scientific research on the negative and enduring neurological effects of those who have experienced trauma, the applicant did not possess the mental and/or cognitive capacity to provide his legal informed consent, which by definition is to consider each aspect of the information presented and logically perform a calculation of the expected value of each possible alternative. 
m. 
It should be noted that while this evaluation refers to a PTSD diagnosis from a previous psychologist (James F. DeGroot, Ph.D. in 2016 at the United Psychology Center) the Psychologist does not specifically diagnose the applicant with PTSD in this evaluation, but only sites research pertaining to PTSD. This 2016 evaluation was not included for this Advisor to review, but will assume the applicant was adequately diagnosed with PTSD according to the DSM. 

n. 
JLV contains Behavioral Health diagnoses of Adjustment Disorder, Alcohol Dependence, Insomnia and ADHD. There is no PTSD diagnosis in the medical records. 

o. 
A note in AHLTA dated 3 August 2012 (slightly more than 1 month before he submitted his voluntary resignation on 12 September 2012) states: 


SM denies any symptoms of depression today, except for insomnia. He states “I love myself too much to ever want to kill myself.” He denied any losses of energy, loss in previously enjoyable activities, feelings of worthlessness, or difficulties concentrating. His insomnia is described as difficulties falling asleep and staying asleep for several months after being charged with a DUI. Records indicate that they are more longstanding. 
He states that he wrote that he was “very depressed” on a form as a way of telling his Command “that they were putting me in a depressed situation.” He states “I have stress, but I’m not depressed.” He denies any significant anxiety except for 
situational stressors related to UCMJ charges and the resultant disciplinary actions taken by his Command. Thought processes were LLGD (linear, logical and goal directed). 
A detailed psychiatric review of symptoms was performed during session. SM did not exhibit any clinical evidence or history suggestive of a cycling mood disorder, anxiety spectrum disorder, eating disorder, or thought disorder. He states that his combat experience does not cause him any problems. He denied symptoms of avoidance, anxiety, hyperstartle, or nightmares. He denied any significant head 
injuries, “except for when I was playing football, but I think I just got the wind knocked out of me.” 
IMPRESSION / ASSESSMENT / PLAN: Regarding the SM’s axis 1 diagnosis, it 
appears that he has some limited symptoms related to an adjustment disorder. 
p. 
An AHLTA note dated 5 September 2012 (6 days before submitting for voluntary retirement) indicates that he is oriented, his attention, concentration, memory, and overall cognition are within normal limits and his insight and judgement are good. He was not place on a profile (S1) and was declared fit for duty from a retention standpoint. 

q. 
There is no evidence that this particular applicant was not responsible for his actions, had the mental capacity to understand and participate in any administrative proceedings and to meet medical retention standards per medical records near the time of his voluntarily submitted resignation from the Army on 12 September 2012 

r. 
After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant has a partial mitigating diagnosis of PTSD. The applicant met retention standards at the time of discharge. The applicant does not have a service connection. Under liberal guidance, PTSD is a partially mitigating factor for some of his unsatisfactory performance/conduct, namely his driving under the influence but PTSD, or his other BH diagnoses do not account for striking his spouse. The applicant alleges that these later charges were dropped, but this Advisor can find no reference to this adjudication adjustment. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the review and conclusions of the Agency Behavioral Health advising official, and published DoD guidance for liberal consideration and clemency when considering discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, his request to resign, the reason for his separation and the decision regarding his character of service. The Board found insufficient evidence of mitigating circumstances for the totality of his misconduct. The applicant did not provide sufficient evidence of post-service achievements or letters of reference to support a clemency determination. Based on a preponderance of evidence, the Board determined that the applicant’s character of service was not in error or unjust. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. 
X 
CHAIRPERSON 
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): Not Applicable REFERENCES: 
1. Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 or more days. 
a. Paragraph 1-22(a) states an officer will normally receive an honorable 
characterization of service when the quality of the officer’s service has met the 
standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer. 
b. 
Paragraph 1-22(b) states an officer will normally receive an under honorable conditions characterization of service when the officer’s military record issatisfactory but not sufficiently meritorious. 

c. 
Chapter 3 (Resignations) of the regulation prescribes the tasks, rules, and steps for processing voluntary resignations). Paragraph 3-13 (Rules for processing resignation for the good of the service in lieu of general court-martial) states an officer may submit a resignation for the good of the service in lieu of general court-martial if court-martial charges have been preferred against the officer with a view toward trial by general court-martial. An officer who resigns for the good of the service (regardless of the character of service received) is barred from rights under laws administrated by the Veterans Affairs based on the period of service from which the officer resigned. 

d. 
Chapter 4 (Eliminations) of the regulation prescribes the process for elimination of an officer in the Army. Paragraph 4-1 (Overview) states an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. However, an officer who will not or cannot maintain those standards will be separated. 


2. 
The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 

3. 
The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed that these boards give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a 


reasonable opportunity for relief, even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. 
a. 
Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. 

b. 
An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. 

c. 
Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 


4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and 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//