ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 26 January 2022 DOCKET NUMBER: AR20210008863 
APPLICANT REQUESTS: in effect: 
. 
an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable 

. 
a medical discharge 


. Veterans Administration (VA) benefits APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
• 
DD Form 149 (Application for Correction of Military Record) 

• 
DD Form 214 (Certificate of Release or Discharge from Active Duty) 

• 
Statement from S, Licensed Clinical Social Worker 


FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, in effect, he got in a fight when he was drunk while in the Army. He was threatened and scared by his supervisor. He went back to reservation after being absent without leave (AWOL). His mom died in a bad car wreck while he was there in an AWOL status. He was arrested on a federal warrant due to being AWOL. He was offered to go to treatment while in the Army but he was too depressed due to the passing of his mother that was a few days prior. He did not feel like he could handle alcohol treatment with the grief of his passing mother and his terrible anxiety. He asked to get out of the military due to his mental state and he was given an UOTHC discharge. He was told at that time he may be eligible for a medical discharge. He is in need of serious mental health treatment and alcohol treatment to help him as he is currently homeless and his anxiety is very serious. He needs treatment and assistance but cannot afford them or find them in the community. He would like services from the Veterans Administration (VA). 

3. 
In support of the applicant’s case, a Licensed Clinical Social Worker provided a statement reiterating the applicant’s contentions. In pertinent part, she states, the applicant reports many signs and symptoms of severe anxiety, post-traumatic stress disorder (PTSD) and depression. The applicant stated his history of anxiety started before military service, however, he got very scared during his military time and he went AWOL. The applicant has a long history of alcohol abuse and severe mental illness. The complete statement will be provided to the Board for review and consideration. 

4. 
On 31 October 2000, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic). 

5. 
His record contains documentation that shows he was AWOL from on or about 7 May 2001 to 27 April 2002; and 26 June 2002 to 10 February 2003. The applicant was also placed in confinement on multiple occasions. 

6. 
On 18 February 2003, court-martial charges were preferred against the applicant for being AWOL from on or about 7 May 2001 to 27 April 2002 and 26 June 2002 to 11 February 2003. His chain of command recommended and approved the charges be referred to the Special Court-Martial empowered to Adjudge a Bad Conduct Discharge convened by Court-Martial Convening Order Number 11, dated 29 October 2002. 

7. 
On 27 February 2003, the applicant consulted with legal counsel.  He was informed of the charges against him for violating Article 86, AWOL (2 specifications), of the Uniform Code of Military Justice (UCMJ) and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge in lieu of trial by court-martial. 


a. 
He voluntarily requested discharge in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. 

b. He was advised that he might be: 
. 
deprived of many or all Army benefits 

. 
ineligible for many or all benefits administered by the Veterans Administration (VA) 

. 
deprived of his rights and benefits as a veteran under both Federal and State laws 



c. 
He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions. He was also advised that he could submit statements in his own behalf and he elected to submit a statement in his own behalf. His statement is not available; however, his defense counsel provided a statement and stated, in pertinent part: 


(1) 
The applicant entered the Army in October of 2000 and during that time he has been dealing with an ongoing alcohol abuse problem. Unfortunately, he has not been able to overcome his problems with alcohol. The applicant understands that this is not an excuse for his conduct, and that he must face the consequences of his actions. He is, however, requesting the chain of command takes into consideration not only the offenses with which he was charged, but also the underlying situation that led to these charges when the chain of command was deciding whether or not to approve a chapter 10 separation in this case. 

(2) 
The applicant originally self-admitted to the Alcohol and Drug Abuse Prevention and Control Program (ADAPC) prior to going AWOL in May 2001. After being evaluated at ADAPC, the applicant was prescribed medications to help combat his problems with alcohol. Unfortunately, he comes from a family with a history of alcohol abuse and the counseling he received at ADAPC was insufficient to overcome his problems. In addition to his own problems, at the time the applicant went AWOL, he was very concerned with his mother's health and the affect her alcoholism was having on both her and the applicant’s younger brother. 

(3) 
It has become apparent that the applicant should not remain in the United States Army. Defense counsel asked that the chain of command grant his request for a chapter 10 separation for several reasons. Firstly, the applicant’s misconduct directly relates to his long-term alcohol abuse, which he has been unable to control. Secondly, his family history of alcoholism and concerns for the wellbeing of his immediate family played a major part in the applicant’s decision to go AWOL. Defense counsel was sad to say that the applicant’s mother passed away in January and the applicant wishes now, more than ever, to be able to return to his home so he can help care for his younger brother. Thirdly, this offense is purely a military charge. This does not excuse the misconduct, but it should be put in perspective. Lastly, if the chain of command approves the applicant’s discharge, he intends to enroll immediately in an alcohol abuse treatment program to address his drinking problem. It is in his best interest to start this rehabilitation as soon as possible. 

d. 
On 12 March 2003, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, reduced him to the lowest enlisted grade, and directed that his service be characterized as under other than honorable conditions. 


8. 
The applicant's DD Form 214 shows he entered active duty this period on 

31 October 2000 and he was discharged on 1 May 2003 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. He had completed 9 months and 24 days of net active service during this period with time lost (AWOL and confinement) from 7 May to 5 June 2001; 6 June 2001 to 26 April 2002; 27 April to 1 May 2002; 26 June to 26 July 2002; 27 July 2002 to 9 February 2003; 10 February to 11 February 2003; and 12 February to 11 March 2003. 

9. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 

10. 
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 (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. 

11. 
The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 

12. 
MEDICAL REVIEW: 


The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) was not in use during his time in service. His hardcopy military medical records were not available for review. A review of his service record indicates he received treatment through the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). He was also prescribed medication to help with alcohol use. A review of JLV indicates he has been admitted to the VA under humanitarian care. His most recent admission for detox was 12 Dec 2020. The discharge diagnoses were Alcohol Use Disorder and Alcohol Withdrawal. His other diagnoses include Methamphetamine Abuse, Alcohol Dependence, and non-military PTSD. His hospital discharge notes indicate he receives behavioral health services on the reservation. Per his civilian records his anxiety and alcohol abuse existed prior to his service. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge other than Alcohol Abuse. While he has a diagnosis of non­military PTSD from the VA in 2020. There is no indication he had a diagnosis at the time of his service 18 years prior. ADACP counselors are licensed social workers and would have been able to determine if there was another psychiatric diagnosis at the time of his service. There is no psychiatric condition to consider with respect to mitigation of his misconduct. 
a. Kurta Questions 
(1) 
Did the applicant have a condition or experience that may excuse or mitigate the discharge? 

(a) No 

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

(a) No 

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

(a) No 

(4) 
Does the condition or experience outweigh the discharge? 


(a) N/A 
BOARD DISCUSSION: 
1. 
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, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The 

Board considered documents provided by the applicant and the review and conclusions of the advising official. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board concurred with the medical advisory opinion finding no psychiatric condition to consider with respect to mitigation of his misconduct or warrant a referral of the applicant’s record to IDES (Integrated Disability Evaluation System) for consideration of military medical disability/retirement. The Board found insufficient evidence of in-service mitigating factors for the misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 

2. 
The law allows the VA to award compensation for disabilities that were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army's rating.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. 


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. 
Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 

3. 
Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 

4. 
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army disability 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 or her office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. The Physical Disability Evaluation System (PDES) assessment process involves two distinct stages:  the Medical Evaluation Board (MEB) and the physical evaluation board (PEB). 


a. 
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. 

b. 
 A PEB is an administrative body possessing the authority to determine whether 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. 

c. 
 Service members who are determined to be unfit for duty due to disability are either separated from the military [if the percentage of disability rating is less than 30 percent] or are permanently retired [if the percentage of disability rating is 30 percent or greater], depending on the severity of the disability and length of military service. 


5. 
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 (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. 

6. 
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. 


a. 
 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. 

b. 
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, 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. 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. 


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