IN THE CASE OF:  

		BOARD DATE:  20 September 2023

		DOCKET NUMBER:  AR20230001880


APPLICANT REQUESTS:  In effect, upgrade his under other than honorable conditions 
(UOTHC) discharge to a medical discharge. 

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

*	DD Form 149 (Application for Correction of Military Record)
*	Department of Veterans Affairs (VA) Rating Decision, dated 28 August 2019

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: 

   a.  He was sexually assaulted and assaulted while serving from 1986 until 1990. He 
did not receive medical treatment for either incident. He was continually harassed at 
work, in the dining facility, and in the barracks. He could not take a shower or use the 
restroom without being in constant fear for his life, which affected his mental state. 

b.  His commander and senior noncommissioned officers (NCOs) did not help or 
protect him. He lost all hope and requested a discharge for the good of the 
government. If he had received proper medical treatment, he would have been 
medically discharge due to his mental condition and state of mind. He has been 
ashamed of what happened but considering recent events he decided he was 
treated wrongly. He has come forward to correct all the mistakes made, and the 
mental and emotional effects of what he has had to deal with. 

3.  On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD), 
sexual assault, and other mental health issues, as contributing and mitigating factors in 
the circumstances that resulted in his separation. 
4.  On 4 February 1977, the applicant enlisted in the Regular Army. He honorably 
served through several reenlistments and attained the rank/grade of Specialist Five 
(SP5) on 1 June 1981, [later changed to Sergeant (SGT)/E-5 on 1 October 1985].

5.  He served in Korea from 12 January 1979 to 16 February 1980; in Hawaii from 
27 March 1980 to 25 March 1983; and again, in Korea from 27 March 1983 to 28 April 
1984, and 7 December 1988 to 30 November 1989. 

6.  On 2 April 1990, court-martial charges were preferred against the applicant for 
violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge 
Sheet) shows he was charged with being absent without leave (AWOL) from his unit 
from on or about 22 February 1990 until 29 March 1990.

7.  On 3 April 1990, the applicant waived a separation medical examination. 

8.  On 4 April 1990, after consulting with counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 10, for the good of the service. In his request, he 
acknowledged he was making the request of his own free will, that no one had 
subjected him to coercion, and that counsel had advised him of the implications of his 
request. He further acknowledged he was guilty of the charge and was afforded the 
opportunity to submit a statement in his own behalf. 

9.  On 7 May 1990, the applicant's commander recommended approval of his discharge 
request and the issuance of an UOTHC discharge. He noted the applicant went AWOL 
for personal reasons and was AWOL for 35 days until apprehended by civil authorities. 
Subsequently, his chain of command recommended approval of the request. 

10.  Following legal review, the separation authority approved the applicant's request for 
discharge in lieu of trial by court-martial on 10 May 1990. He further directed the 
applicant’s reduction to the lowest enlisted grade with the issuance of an UOTHC 
Discharge Certificate. 

11.  On 7 June 1990, the applicant was discharged accordingly. His DD Form 214 
(Certificate of Release or Discharge from Active Duty), confirms he was discharged 
under the provisions of Army Regulation 635-200, Chapter 10, for the good of the 
service – in lieu of court-martial. His service was characterized as UOTHC. He was 
credited with completing 13 years, 2 months, and 19 days of net active service, with two 
periods of time lost. He was awarded or authorized the:

*	Army Service Ribbon
*	Overseas Service Ribbon
*	Army Good Conduct Medal (4th Award)
*	Army Commendation Medal
*	NCO Professional Development Ribbon -1
*	Sharpshooter Marksmanship Qualification Badge with (Rifle Bar)

12.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial. 

13.  On 27 March 2023, in the processing of this case the U.S. Army Criminal 
Investigation Division, searched their criminal file indexes, which revealed no Criminal 
Investigative and/or Military Police Reports pertaining to the applicant. 

14.  The applicant provides a VA rating letter showing he was granted service 
connection for treatment purposes only for PTSD with persistent depressive disorder 
and major depression on 28 August 2019. 

15.  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. 

16.  MEDICAL REVIEW:  

    a.  Background: The applicant is requesting an upgrade of his under other than 
honorable conditions (UOTHC) discharge to a medical discharge. The applicant asserts 
MST, other mental health, and PTSD are mitigating factors in his discharge. 
    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Below is a summary of information pertinent to this 
advisory: 
*	Applicant enlisted in the Regular Army on 4 February 1977. He honorably served 
through several reenlistments and attained the rank/grade of Specialist Five (SP5) 
on 1 June 1981, [later changed to Sergeant (SGT)/E-5 on 1 October 1985].
*	On 2 April 1990, court-martial charges were preferred against the applicant for being 
absent without leave (AWOL) from his unit from on or about 22 February 1990 until 
29 March 1990. 
*	On 4 April 1990 the applicant voluntarily requested discharge under AR 635-200, 
Chapter 10, for the good of the service-in lieu of trial by court-martial. The request 
was approved. 
*	The applicant was discharged on 7 June 1990 with an UOTHC characterization of 
service. 
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 149, his 
ABCMR Record of Proceedings (ROP), VA benefits letter, DD Form 214, as well as 
documents from his service record and separation. 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 is requesting that his other than honorable discharge be changed to 
a medical discharge due to sexual assault, physical assault, PTSD and other mental 
health concerns. Please see his application and supporting documents for full request 
and history, but in short, the applicant stated he was harassed and assaulted, feared for 
his life, and his commander and NCO did not help him. He noted losing all hope and 
requested a discharge. He believes that if he would have received medical treatment 
after his assault, he would have gotten a medical discharge. 
    e.  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 not contain his service treatment records (STR). On 3 April 1990, the 
applicant waived a separation medical examination. There is currently no evidence the 
applicant was ever seen for mental health, experienced mental health symptoms, or 
was diagnosed with a mental health condition while in the service. A request for 
information from CID did not produce any records or data about the applicant’s reported 
MST, assault or harassment. However, given the lack of medical records and the stigma 
around MST, particularly with men as the victims, it is very common that there would be 
no record of the event(s), and that he would not have reported it at the time.
    f.  Per the applicant’s VA EHR, he has been engaged in mental health care since 
2017. Given the characterization of his discharge, he would not typically be eligible for 
most VA benefits. However, the applicant provided a copy of his VA ratings letter that 
shows he has been granted service connection for treatment purposes only for PTSD 
with persistent depressive disorder and major depression on 28 August 2019. The letter 
cites his compensation and pension evaluation (C&P) dated 26 June 2019 that stated 
“The claimed condition was at least as likely as not (50 percent or greater probability) 
incurred in or caused by or a result of the in-service MST related marker(s). The 
Veteran was physically and sexually assaulted in service with the direct cause of his 
PTSD. The Veteran has been diagnosed with PTSD due to assault and MST while in 
the military. He has also been diagnosed with persistent depressive disorder which is 
proximately due to or the result of his PTSD, and the result of an in-service stressor 
related event.”  The applicant has been diagnosed with PTSD, major depressive 
disorder (MDD; to include recurrent - moderate, recurrent - severe with psychotic 
symptoms, and severe without psychotic symptoms) alcohol use disorder to include with 
alcohol induced psychotic disorder with delusions, suicidal ideation, paranoid 
schizophrenia, bipolar disorder (current episode depressed, and in partial remission), 
and generalized anxiety disorder. The applicant has engaged in outpatient individual 
and group therapy, medication management, substance use treatment (to include 
inpatient/detoxification care), and inpatient psychiatric care. 
    g.  Based on the available information, it is the opinion of the Agency Behavioral 
Health Advisor that there is sufficient evidence to support the applicant had a mitigating 
experience during his time in service and is now (treatment only) service connected for 
a mitigating condition secondary to the MST and assault. However, there is insufficient 
evidence that the applicant should have received a medical discharge. 
Kurta Questions:

    (1)  Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? Yes, applicant asserts a mitigating experience and 
mitigating conditions.  

    (2)  Did the condition exist or experience occur during military service? Yes, the 
applicant asserts the mitigating experience occurred during his time in service. The 
applicant has been service connected (for treatment purposes only) for PTSD, 
persistent depressive disorder and MDD secondary to MST and assault.  

    (3)  Does the condition or experience actually excuse or mitigate the discharge? Yes. 
The applicant asserts mitigation due to his experiences of assault and MST, and PTSD 
and depression secondary to the trauma. The applicant has been service connected (for 
treatment purposes only) for these conditions, with in-service MST and the assault listed 
as the cause. AWOL can be an avoidance behavior, consistent with the natural history 
and sequalae of several mental health conditions, including PTSD and depression. In 
addition, there is a nexus between MST and AWOL, as a self-protective measure to 
escape the perpetrator(s). In summary, mitigation is supported, and this advisor 
recommends an upgrade to Honorable with a narrative reason for separation change to 
Secretarial Authority.

    h.  Lastly, there is insufficient evidence to support a disability separation or referral to 
IDES process at this time. He has no record of mental health care, a mental health 
profile, or a mental health diagnosis at all during his time in service. There is no 
indication that he was not fit for duty or did not meet medical retention standards. VA 
examinations are based on different standards and parameters; they do not address 
whether a medical condition met or failed Army retention criteria or if it was a ratable 
condition during the period of service. Therefore, a VA service connection decision does 
not imply failure to meet Army retention standards at the time of service. A subsequent 
diagnosis of PTSD or depression through the VA is not indicative of an injustice at the 
time of service. Furthermore, even an in-service diagnosis of PTSD, depression or MST 
are not automatically unfitting per AR 40-501 and would not automatically result in 
medical separation processing.


BOARD DISCUSSION:  

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that partial relief was 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.  One potential 
outcome was to grant an upgrade to a general based on medical opine based and the 
applicant’s 13 years of service he was a good Soldier. However, upon review of the 
applicant’s petition, available military records and medical review, the Board partially 
concurred with the advising official finding insufficient evidence to support a disability 
separation or referral to IDES process at this time. He has no record of mental health 
care, a mental health profile, or a mental health diagnosis at all during his time in 
service. There is no indication that he was not fit for duty or did not meet medical 
retention standards.

2.  The Board took into consideration the advising official recommendation based on 
liberal consideration for clemency for an upgrade of the applicant’s discharge to a 
general under honorable conditions. The Board considered the opine finding sufficient 
evidence to support the applicant had a mitigating experience during his time in service 
and is now (treatment only) service connected for a mitigating condition secondary to 
the MST and assault. However, the Board determined there is insufficient evidence of 
in-service mitigating factors for the misconduct to weigh a clemency determination. The 
applicant provided no post-service achievements or character letters of support that 
might have mitigated his characterization discharge.  During deliberation, the Board 
determined the applicant had a prior period of honorable service which is not currently 
reflected on his DD Form 214 and recommended that change be completed to more 
accurately show his period of honorable service by granting a partial upgrade to show 
his continuous honorable service. 


?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief. The Board recommends that all Department of the 
Army records of the individual concerned be corrected.  As a result, amend the 
applicant’s DD Form 214 for the period ending 7 June 1990 by adding the following 
entries to item 18 (Remarks):

*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770204 UNTIL 860116

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief. As a result, the Board recommends denial of so much of 
the application that pertains to upgrade his under other than honorable conditions 
(UOTHC) discharge to a medical discharge.
	 
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):  N/A


?
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, 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.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) establishes the Physical Disability Evaluation 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 that a Medical Evaluation Board is convened to 
document a Soldier's medical status and duty limitations insofar as duty is affected by 
the Soldier's status. A decision is made as to the Soldier's medical qualifications for 
retention based on the criteria in Army Regulation 40-501 (Standards of Medical 
Fitness). Disability compensation is not an entitlement acquired by reason of service-
incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted 
and who can no longer continue to reasonably perform because of a physical disability 
incurred or aggravated in service.

4.  Army Regulation 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 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.

5.  On 3?September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRB) and Service Boards for Correction of Military/Naval Records 
(BCM/NR) to carefully consider the revised PTSD criteria, detailed medical 
considerations and mitigating factors when taking action on applications from former 
service members administratively discharged under other than honorable conditions 
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. 

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 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; 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.  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, 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. 

   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)	AR20230001880


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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