ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 August 2019 DOCKET NUMBER: AR20160017144 APPLICANT REQUESTS: * Her narrative reason for separation changed to medical retirement * Her character of service changed to uncharacterized APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forced of the United States) * Letter of Support) * Veterans Affairs (VA) Rating Decision * VA Benefits Letter 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: a. She felt that serving in the Army was a way to honor her family’s legacy, so as soon as she was of age she joined the Army. When she was 18, only 5 months into the Army she was raped by another Soldier in her training unit at Fort Meade, MD. She did not immediately report it, because she felt no one would believe her. She believed her drill sergeant would not care that she was asleep during the encounter and not romantically involved with the Soldier. After experiencing a breakdown, she reported the incident to her chain of command, who later escorted her to the Criminal Investigation Division (CID) office. She felt her investigation was worse than the incident itself, as she felt she was being blamed and interrogated. She stated that she was asked a series of questions, she felt had nothing to do with the matter, and was told if she decided to pursue the claim, she would need to take a polygraph to determine if she was truthful. She later dropped the charges, with the understanding that she would not receive a reprimand or punishment. She was later written up for fraternization, by her company commander. b. Upon her permanent change of station she feared being groped, while walking in her barracks. She lost 15 pounds due to a lack of appetite and stress. She sought mental health which was unavailable, so she spoke with a chaplain. She was sent to work in Yongsan, Korea so that she could receive mental health support, but once she saw the psychiatrist she was diagnosed with bipolar disorder. She states, she was informed that PTSD was only for combat veterans and rape was not an issue in the military, but she did receive medication. She saw her assailant while in Korea and she began having panic attacks. She crossed paths again with the assailant while off post on multiple occasions, and did not feel safe anywhere. Her sergeant major (SGM) directed her to see a therapist or female support group. Once a new noncommissioned officer (NCO) was in charge of her, the NCO stated her appointments were a hindrance to the mission, and that she was a substandard Soldier. She began getting depressed and felt alone. She felt that therapy was no longer helpful, as were anyone in the unit. Her SGM convinced her commander to separate her under chapter 5-17 (Other designated physical or mental conditions), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). She felt she had been betrayed during her time in service. 3. The applicant provides, a. Letter of Support, dated 21 May 2013, which states that author met that applicant at Daegu, Korea and she was upbeat, gregarious with a positive outlook on life. As an NCO in the organization, she was aware that the detachment commander noticed the applicant’s declining/inconsistent performance, increasingly erratic behavior and loss of enthusiasm. She was then relocated to Yongsan, where the author became her first line supervisor. They built a trusting relationship, where the applicant disclosed her incident at Fort Meade to her. She also was aware that the applicant saw her attacker in Korea on numerous occasions and would come to her barracks room to calm her down, when they did cross paths. When she arrived her appointments increased but her duty performance continued to decline. The author moved departments but was still able to witness the applicant’s work performance and behavior continue to decline. She witnessed the new NCO’s lack of compassion, and overheard her call the applicant a flake. The applicant’s was not given any task with responsibility or deadlines as she continued to suffer anxiety. b. VA Rating Decision, dated 21 May 2014 and VA Benefits Letter, dated 14 November 2014. 4. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 23 June 2004. b. Her Enlisted Records Brief (ERB) reflects that she served in Korea from 7 April 2005 to 29 July 2006. c. On 7 July 2006, the applicant's immediate commander notified her that action was being initiated to separate her under the provisions of AR 635-200, chapter 5, paragraph 5-17, for being diagnosed with a depressive disorder not otherwise specified, that may deteriorate into affective instability and impulsive aggressive behavior towards self, others, or property. Furthermore, it was unlikely that efforts toward rehabilitation or development into a satisfactory member of the military would be successful. d. She acknowledged the commander’s intent to separate her on 7 July 2006. She conferred with legal counsel on 11 July 2006 and was advised of the basis for the contemplated action to separate her for a depressive disorder not otherwise specified, under AR 635-200, Chapter 5-17, and its effects; of the rights available to her; and of the effect of any action taken by her in waiving her rights. She declined making a statement, but requested a consulting counsel. The applicant acknowledged that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued. e. On 11 July 2006, the immediate commander formally initiated separation action against the applicant under the provisions of AR 635-200, chapter 5, paragraph 5-17. The chain of command recommended separation with an honorable discharge. f. On 14 July 2006, following a legal review for legal sufficiency, the separation authority approved the request for discharge for other designated physical or mental conditions and ordered her service be characterized as honorable. g. She was discharged on 29 July 2006. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged from active duty under the provisions of AR 635-200, Chapter 5, paragraph 5-17 with an honorable characterization of service. She had 2 years, 1 month, and 7 days of active duty service. She was awarded or authorized: * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Army Service Medal * Overseas Service Ribbon 5. On 31 January 2008, she enlisted in to the Wisconsin Army National Guard (WIARNG). On 15 September 2009, she was honorably discharged. Her NGB 22 (Report of Separation and Record of Service), shows she was discharged from the ARNG under the provisions of NGR 600-200 (Enlisted Personnel Management), Chapter 6, paragraph 36f (State ARNG Separations) with an honorable characterization of service. She had 1 year, 7 month, and 15 days of reserve component service. 6. On 6 July 2017, the Army Review Boards Agency medical advisor/psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. The applicant met medical retention standards in accordance with Chapter 3, AR 40-501 (Standards of Fitness), and following the provisions set forth in AR 635 - 40 (Physical Evaluation for Retention, Retirement or Separation) that were applicable to the Applicant’s era of service. b. The applicant’s medical condition was considered at the time of her discharge. c. A review of available documentation did not find evidence of a mental-health considerations that are supportive of a change to the character of the discharge in this case. 7. The applicant was provided with a copy of this advisory opinion to give her an opportunity to submit a rebuttal. She did not respond. 8. By regulation 635-200, when a commander determines that a soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the soldier for a medical examination and/or mental status evaluation in accordance with AR 40–501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. BOARD DISCUSSION: After review of the application and all evidence, the Board found relief is not warranted. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there was no boardable medical condition during her period of active service that should be considered for physical disability retirement. She was provided the opportunity to rebut the advisory; however, she did not respond. An uncharacterized discharged is provided to those who separated while they were in an entry level status (less than 6 months of service); she was not in an entry level status when discharged. Based upon the preponderance of the evidence, the Board agreed there was no error or injustice in this case. 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, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. 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. 3. Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 5 of this regulation, states that unless the reason for separation requires a specific characterization, a soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. No soldier will be awarded a character of service under honorable conditions under this chapter unless the soldier is notified of the specific factors in his/her service record that warrant such a characterization, using the notification procedure. b. 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. c. 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. 4. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 5. AR 635-40 (Physical Evaluation for Retention, Retirement or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC). It 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017144 2 1