ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 December 2019 DOCKET NUMBER: AR20170016142 APPLICANT REQUESTS: to upgrade her other than honorable conditions discharge to either a general, under honorable conditions discharge or an honorable discharge and restore her rank to specialist (SPC)/E-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-Authored Letter * DD Form 3349 (Physical Profile), dated 9 May 2005 * Work Excuse, dated 13 September 2004 * Absent from Work Slip, dated 30 May 2002 and 14 August 2002 * Note from Doctor, dated 11 February 2001, 23 May 2001, and 3 October 2001 * DD Form 4 (Enlistment/Reenlistment Document), Page 2 (only), dated 20 August 1999 * DA Form 5261-R (Selected Reserve Incentive Program – Enlistment Bonus Addendum), dated 20 August 1999 * DA Form 3540-R (Certificate of Acknowledgment of U.S. Army Reserve Service Requirements and Methods of Fulfillment), dated 20 August 1999 * Letter from Doctor, dated 23 May 2001 * New Patient Assessment, dated 23 May 2001 * Medical Chronological List, dated 24 May 2001 through 27 June 2001 * Consultation, dated 13 June 2001, 9 August 2001, 23 August 2001 and 13 November 2001 * Ultrasound Results, dated 28 June 2001 * Postoperative Exam/Consultation, dated 10 July 2001 * Health History Summary, dated 9 December 2002 * Initial Pregnancy Profile, dated 9 December 2002 * GYN Ultrasound Worksheet, dated 9 December 2002 and 21 March 2003 * Surgery Order, dated 7 January 2003 * SF 600 (Chronological Record of Medical Care), dated 4 September 2004, 2 November 2004, 6 December 2004, 12 December 2006, 11 October 2005, and 22 January 2006 * DD Form 2766 (Adult Preventative and Chronic Care Flowsheet), dated 10 March 2006 * Report of Operation, dated 11 December 2014 * Report of Care, dated 3 March 2015, 7 June 2016 * Surgeon Master Note, dated 13 December 2016 * Patient Discharge Summary, dated 13 December 2016 * Patient Laboratory Results, dated 16 March 2017 and 20 March 2017 * Orders 05-340-00009 (Reduction/Discharge), dated 6 December 2005 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 (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 she asked to be placed in the Individual Ready Reserve (IRR) after she received counseling from her command to stay in the active Reserves. Her contract was at the point where she could enter into the IRR. She made a request after she found out her health had gotten worse. a. The unit was fully aware of her medical conditions. There are numerous medical documents to show how sick she was back then and even to this day. She had multiple surgeries and procedures trying to fight and maintain her conditions: endometrial hyperplasia, polycystic ovarian syndrome, and eventually diabetes which was caused by the other two conditions. b. Since her release from the U.S. Army Reserves (USAR) she has spent a lot of time being treated for her conditions. She has seen a specialist that could only treat her condition with harsh medicines and surgery to remove tumors and masses. The only cure was a hysterectomy which no doctored was willing to do no matter how many times she asked. c. Around the time of her release, she was trying to get cleared to return to regular duty by her doctor at Patrick Air Force Base. d. Since her release she has become a dedicated military spouse, foster mother, and was eventually able to adopt one of the children they fostered. Her conditions has taken a lot from her: Her military career, her ability to hold a job, and her chance to give birth. She has found this condition most of her adult life and she could not handle being sick for the rest of her life. She chose to end her suffering and have a hysterectomy. e. She requests her lengthy medical history be taken into consideration and grant her request to have her discharge changed and her rank restored. 3. The applicant provides: a. DD Form 3349, dated 9 May 2005, which shows she was given a 3-month profile for abdominal pain. Her profile imposed the following limitations * not moving with a fighting load at least two miles * not constructing an individual fighting position * not able to perform 3-5 second rushes under direct and indirect fire * no group runs * no 2-mile run on an Army Physical Fitness Test (APFT) * no sit-ups on an APFT * no unlimited running * no unlimited biking * no unlimited swimming * no lower body weight training b. Work excuse, dated 13 September 2004, which requests the applicant be excused from work from 18 May 2004 to 13 September 2004 for medical reasons. c. Absent from work slip for the following dates which excused the applicant from work for the period indicated: * 30 May 2002; for 30 May 2002 only * 14 August 2002; for the period covering 20 July 2002 to 14 August 2002 d. Note from doctor for the following date: * 11 February 2001, which states to allow the applicant to do exercises at her own pace; the applicant states the doctor gave her this note after her surgery. * 23 May 2001, which states the applicant has been under a doctor’s care since 23 May 2001 and is able to resume work duties on 11 September 2001 with no limitations * 3 October 2001, which states the applicant has been under a doctor’s care since 23 May 2001 and limits the applicant to perform physical training at her own pace since she is on medication following surgery in June 2001 e. DD Form 4, page 2 only, dated 20 August 1999, which shows she enlisted on 20 August 1999. f. DA Form 5261-R, dated 20 August 1999, in which the applicant highlighted a portion in section IV (Obligation) which shows she enlisted for 8 years (serving 6 years in the USAR and 2 years in the IRR). g. DA Form 3540-R, dated 20 August 1999, in which the applicant highlighted section IV (Service Obligation), item 1 (Initial Enlistment as a Non-Prior Service Applicant) which states the applicant incurs a statutory military service obligation of 8 years and a contractual obligation to 6 years as an assigned member of a program unit in the Selected Reserve and 2 years as an assigned member of the IRR unless she voluntarily elects to remain assigned and continues to satisfactorily participate as a member of a troop program unit. h. A letter from her doctor, dated 23 May 2001, which states “the pathology after an August 2000 endometrial curettage revealed endometrial hyperplasia without atypia. He told her that her history is suggestive of atypical polycystic ovarian syndrome (PCOS).” i. New patient assessment, dated 23 May 2001, which lists her diagnosis as polycystic ovary syndrome, endometrial hyperplasia, endometriosis (stage I), and salpingectomy. One of the listed conditions is unreadable. A transvaginal ultrasound, dated 23 May 2001 suspects hyperplasia. Her medical history lists multiple dilation and curettage (D&C) procedures and a diagnosis of endometrial hypoplasia. j. Medical chronological list, dated 24 May 2001 through 27 June 2001, which shows blood drawn for glucose and insulin as a result of her diabetes claim as well as complications from heavy bleeding. k. Consultation on the following dates for the following reasons: * 13 June 2001, for heavy menstrual flow; the ovaries have classic PCOS-like appearance * 9 August 2001, as a result of light bleeding that occurred the day previous. The impressions noted are history of endometrial hyperplasia, cystic without atypia, history of right tubo-ovarian abscess, status-post left salpingectomy for torsion * Chronic oligo-ovulation, apparent PCOS variant with history of metromenorrhagia, history of excessive weight gain, and history of endometriosis (stage I) * 23 August 2001, for an urgent add-on as the applicant was experiencing heavy bleeding with associated cramping * 13 November 2001, for an adverse reaction to prescribed medication l. Ultrasound results, dated 28 June 2001, a follow-up consultation, which showed the right and left adnexum as normal. m. Postoperative exam/consultation, dated 10 July 2001, which shows on 29 June 2001, the applicant underwent examination under anesthesia as well as D&C due to a history of abnormal uterine bleeding and previous history of endometrial hyperplasia. n. Health history summary, initial pregnancy profile, and GYN ultrasound worksheet, all dated 9 December 2002, which shows her cervix was slightly enlarged and she had a eccentric endometrial mass. Surgery to remove the mass was ordered that day and scheduled for 7 January 2003. o. GYN Ultrasound Worksheet, dated 21 March 2003, which shows her right and left ovary measures were within normal limits. p. SF 600 on the following dates for the reasons noted: * 4 September 2004, for acute abdominal pain in the left lower quadrant * 2 November 2004, for dizziness, being queasy, and discomfort * 6 December 2004, as a follow up for depression, medical clearance as a USAR Soldier, follow up for evaluation of left lower quadrant pain * 12 December 2006, for results of her pregnancy test; the document noted the applicant had surgery to remove uterine scarring in August 2005 * 11 October 2005, for anxiety over marital discord and bereavement over miscarriages * 22 January 2006, for ultrasound results which shows myometrial focal lucency consistent with fibroid and heterogeneous endometrium with multiple subcentimeter hypoechoic densities consistent with endometritis or adenomyosis q. DD Form 2766, dated 10 March 2006, which shows she received a pelvic ultrasound. r. Report of operation, dated 11 December 2014 for abnormal endometrial findings on recent pelvic ultrasound. s. Report of care for the following dates for the reasons noted: * 3 March 2015, for an endometrial biopsy for menorrhagia and endometrial hyperplasia; the biopsy proved an endometrial polyp with small foci of complex endometrial hyperplasia without atypia * 7 June 2016, for benign endometrial hyperplasia t. Surgeon master note, dated 13 December 2016, which the applicant was seen pre-operative for hysterectomy. A recent biopsy shows simple hyperplasia. u. Patient discharge summary, dated 13 December 2016, in which it discussed post-operative care which would be imposed after surgery for endometrial hyperplasia. v. Orders 05-340-00009 (Reduction/Discharge), dated 6 December 2005 which shows the applicant was reduced in rank from SPC/E-4 to private (PVT)/E-1. Additionally, it reflects she was discharged from the USAR under the provisions of Army Regulation (AR) 135-178 (Enlisted Administrative Separations), paragraph 1-18b(3) (Applicability and Time of Instruction) and issued an other than honorable conditions discharge. 4. A review of the applicant’s service record shows: a. On 20 August 1999, she enlisted in the USAR. b. DA Form 3540-R, section IV, item 1, dated 20 August 1999, shows she incurred a statutory military service obligation of 8 years and a contractual obligation to 6 years as an assigned member of a program unit in the Selected Reserve and 2 years as an assigned member of the IRR unless she voluntarily elects to remain assigned and continues to satisfactorily participate as a member of a troop program unit. c. The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to consider. However, Orders 0-340-00009, dated 6 December 2005, simultaneously reduced her in rank from SPC/E-4 to PVT/E-1 and discharged her from the USAR under the provisions of Army Regulation 135-178, paragraph 1-18b(3) with an other than honorable conditions discharge. d. On 19 June 2015 the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge processing but found it proper and equitable. The ADRB denied her request for an upgrade of her discharge and/or reason of discharge. 5. By regulation, the separation policies throughout the different chapters in the regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, if any, the reason for her separation and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service and her rank the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :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. 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, 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 135-178 (Enlisted Administrative Separations) sets forth policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reason. The separation policies throughout the different chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. a. Paragraph 1-17 (Contents of Instruction) states the instructions will include a comprehensive explanation of the following: * Characterization of service * The types of discharge certificates * The possible effects of the various certificates on reenlistment, civilian employment, veterans’ employment, veteran’s benefits, and related matters * The unlikelihood that the Soldier will be successful in any attempt to have the character of his or her service changed b. Paragraph 1-18b(3) (Applicability and Time of Instruction) states the instructions cannot be offered to Soldiers assigned to the Individual Ready Reserve, Standby, or Retired Reserve. Instructions will be given during the annual orientation of the Soldier’s service obligations and participation requirements. c. Paragraph 2-9 (Characterization of Service) states: (1) Honorable. An honorable characterization is appropriate when the quality of the Soldier’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. (2) General (under honorable conditions). If a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweighs positive aspects of the Soldier’s military record. (3) Under other than honorable conditions. Service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, homosexual conduct, unsatisfactory participation, or security reasons. 3. 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. 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. 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 based on 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016142 8 1