ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 22 October 2019 DOCKET NUMBER: AR20180016393 APPLICANT REQUESTS: upgrade of her uncharacterized character of service to either honorable or general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, military personnel treated her inappropriately during her basic combat training (BCT); what they did caused her actions. She asserts her records should show her service was under honorable conditions; she would like her DD Form 214, which currently reflects an uncharacterized character of service, to be corrected accordingly. She states she has post-traumatic stress disorder (PTSD) and is currently receiving benefits. 3. The applicant provides her DD Form 214 and a letter from VA, dated 27 April 2018, in which the VA confirms it is providing her with monetary benefits; the letter further lists her character of service as under honorable conditions. 4. The applicant's service records show: a. As part of her enlistment into the Regular Army, she underwent a physical examination on 14 February 2001; the examining physician indicated the applicant was medically qualified to enlist. On 17 July 2001, she enlisted into the Regular Army for a 4-year term; she was 18 years old. Orders assigned her to Fort Leonard Wood, MO for BCT; her records do not show her arrival date. b. On 5 August 2001, the applicant cut her left wrist with a plastic safety razor; the staff duty noncommissioned officer took her to the supporting military hospital for treatment. At the military hospital, the applicant was seen by a behavioral health specialist from the Community Mental Hygiene Service. The applicant returned to her unit later that same day, and her chain of command placed her on Full Unit Watch. c. On 8 August 2001, the military hospital's Patient Administration Division (PAD) initiated a DA Form 2173 (Statement of Medical Examination and Duty Status), which indicated the applicant's emergency treatment was due to "left wrist injury/suicide gesture." The form stated applicant was not to be under the influence of drugs or alcohol; the applicant's unit commander affirmed the requirement for a formal line of duty (LOD) investigation. d. On 9 August 2001, an Entrance Physical Standards Board (EPSBD) determined the following: (1) The applicant was in her 2nd week of BCT; on 5 August 2001, she was brought to the emergency room "because she had scratched her wrist." (a) In an interview, the applicant revealed she had attempted to kill herself on multiple occasions prior to entry on active duty. The applicant additionally reported, starting when she was in elementary school and continuing until she was 13 or 14 years old, family members had molested and raped her. (b) The applicant stated she felt depressed; when asked what that meant, the applicant said she had nightmares, experienced shaking, and would cry without provocation. The applicant also manifested a sad and anxious mood, a sense of hopelessness, and she had difficulty concentrating. (c) The applicant stated she had no significant medical history, and she affirmed she did not use tobacco, alcohol, or illicit drugs; she had graduated from high school with honors and had had no disciplinary problems during school. Although she denied any family history of emotional problems, she said her mother had been, and might still be on drugs; her father and her father's brother were alcoholics, and her two maternal uncles were addicted to drugs. (2) The EPSBD's assessment showed the applicant had a history of both suicidal behavior and depression; these two conditions were disqualifying for enlistment and, based on the applicant's interview, had existed prior to service (EPTS). (3) The EPSBD's diagnoses were depressive disorder, not otherwise specified, and a history of multiple prior suicide attempts; in addition, the board listed the applicant's physical profile, or PULHES, as 111113. (A physical profile is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: "1" meaning a high level of fitness; "3" reflects significant limitations. Profiles can be either permanent or temporary). (4) The EPSBD recommended separation. The applicant concurred with the EPSBD's findings and requested discharge without delay. e. On 10 August 2001, the applicant's brigade commander appointed an investigating officer (IO) to conduct a formal LOD investigation into the applicant's apparent suicidal gesture and wrist injury. f. On 13 August 2001, medical authority issued the applicant a temporary physical profile reflecting the diagnoses of depressive disorder, not otherwise specified, and a history of multiple prior suicide attempts. The factor "S" (psychiatric) was "3" (significant limitations). g. On 20 August 2001, the applicant provided a sworn statement in which she affirmed the following: (1) She was having very bad problems at home, prior to her entry on active duty; she enlisted into the Army to change her life. She had already been dealing with suicide intents since age 16, but never told anyone and had not sought help; she thought she was fine. Upon her enlistment, she believed she was doing exactly what she wanted: escaping her family. (2) She did well during her first week of BCT, but then began waking up in the middle of the night, crying and swearing. She felt there was nothing for her either at home or in the Army; she just wanted to die. Then she started having nightmares about BCT; she would recall how they called her stupid and worthless, just like her parent had done. Despite her efforts to keep everything hidden, she would start crying for no apparent reason. This was when she took a razor and started "sawing" at her wrist; someone saw her and reported her to a drill sergeant. After this, someone brought her to the hospital. (3) Things were already bad before BCT; she affirmed she had been holding things in for so long. However, when they told her she was worthless during BCT, this made things worse; she had joined the Army to get away from that. While it was true that BCT was stressful for her, it was not because of the physical training; she had adjusted to the level of physical activity required for BCT. It was just that she did not want to feel the way she did, and she did not want to cry for hours for no reason. h. On 20 August 2001, the IO completed a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status). The IO stated the applicant's left hand injury was self-inflicted and a suicide gesture; he noted the applicant was diagnosed with depressive disorder, and indicated her mental condition was aggravated by service. The IO went on to affirm the applicant's injuries were not due to her own misconduct; her actions were determined to be in-the-line-of-duty. The IO's findings were subsequently approved by authority of the Secretary of the Army. i. On 21 August 2001, the Behavioral Medicine Division provided a memorandum to the LOD IO, which listed the applicant's diagnoses as depressive disorder, not otherwise specified, and a history of multiple prior suicide attempts; the memorandum further stated the medical opinion that the applicant's medical condition was "somewhat aggravated by military service." j. On 23 August 2001, the separation authority directed the applicant's discharge; on 27 August 2001, she was discharged accordingly. Her DD Form 214 shows she completed 1 month and 11 days of her 4-year enlistment contract. The separation authority was paragraph 5-11 (Separation of Personnel who did not Meet Procurement Medical Fitness Standards), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The DD Form 214 did not list any awards or decorations. 5. The applicant states military personnel treated her inappropriately during basic combat training (BCT) and, in effect, their actions caused her to make a suicidal gesture. She contends her DD Form 214 should be amended based on VA's determination her character of service was under honorable conditions. a. AR 635-200, in effect at the time, stated commanders were to separate Soldiers who were not medically qualified under procurement medical fitness standards when they enlisted. EPSBD proceedings were required to be convened within the Soldier's first 6 months of active duty service, and had to establish the following: that medical authority had identified the disqualifying medical condition(s) within 6 months of the Soldier's initial entry on active duty; that the condition(s) would have permanently disqualified the Soldier from entry into military service, had they been detected earlier; and that the medical condition did not disqualify him/her for retention in military service. A Soldier disqualified under this provision could request retention on active duty; the separation authority made the final determination. b. Per AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, "aggravated by service" meant that a preponderance of evidence showed, as a result of the Soldier's active duty service, a permanent increase in that Soldier's disabling condition had occurred, which extended beyond the condition's natural progression. The Soldier's length of service was also a consideration when determining whether a condition was "service-aggravated." c. Effective 1 October 1982, a revision of AR 635-200 required Soldiers in an entry- level status (i.e. the first 180 days months of continuous active duty service) to receive an uncharacterized character of service. On a case-by-case basis, Headquarters, Department of the Army could direct the issuance of an honorable character of service when clearly warranted by unusual circumstances involving personal conduct and/or duty performance. d. Army Regulation 635-200 provides states members are separated under chapter 14 because of minor disciplinary infractions, pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. e. Regarding her request to change her character of service based on VA's determination: (1) The VA and the Army operate under separate provisions of Federal law (respectively Title 38 (Veterans' Benefits) and Title 10). As such, each makes independent determinations, based upon the requirements set forth within their respective parts of Federal law. (2) Decisions made by the VA, with respect to a Soldier's character of service or the service-connection of a specific disability, are not binding on the Army, and do not indicate the Army's determination was wrong. 7. In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s 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 and length of service, her temporary profile, her behaviors, her sworn statement and the reason for her separation. The Board considered the review and recommendation of the EPSDB, the assessment that her condition may have been “somewhat” aggravated by service and the applicant’s VA documentation. The Board found the applicant’s condition existed prior to service and that she was in an entry-level status prior to separation. Based on a preponderance of evidence, to include her short period of service and the outcome of the EPSBD, the Board determined that the character of service 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 :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. 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 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-9 (Uncharacterized Separations). Soldiers separated in an entry- level status receive an uncharacterized character of service. A separation is an entry level status separation if its processing is initiated during the Soldier's first 180 days of continuous active duty. Headquarters, Department of the Army could, on a case-by- case basis, direct the issuance of an honorable character of service to entry-level Soldiers when it was clearly warranted by unusual circumstances involving personal conduct or duty performance. d. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. e. Paragraph 5-11 specifically provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment were to be separated. EPSBD proceedings were required to be convened within the Soldier's first 6 months of active duty service, and had to establish the following: that medical authority identified the disqualifying medical condition(s) within 6 months of the Soldier's initial entrance on active duty; that the condition(s) would have permanently disqualified the Soldier from entry into military service, had it been detected earlier; and that the medical condition did not disqualify him/her for retention in military service. A Soldier disqualified under this provision could request retention on active duty; the separation authority made the final determination. 3. AR 635-40, in effect at the time, governed the evaluation for physical fitness of Soldiers would might be unfit to perform their military duties due to a disability. a. Paragraph 3-1 (Standards of Unfitness Because of Physical Disability). The mere presence of an impairment did not, of itself, justify a finding of unfitness due to physical disability. In each case, it was necessary to compare the nature and degree of the physical disability with the duty requirements of the soldier, based on his or her office, grade, rank, or rating. b. Paragraph 3-2 (Presumptions). A Soldier was presumed to be in sound physical and mental condition upon entering active duty. d (1) This presumption could be overcome when a preponderance of evidence showed the Soldier incurred an additional disability while on active duty that had resulted from a preexisting medical condition; in such cases, the additional disability was presumed to have been caused by military service aggravation. (2) The presumption of military service aggravation, in turn, could be overcome by a preponderance of evidence that confirmed no permanent new or increased disability, resulting from preexisting causes, occurred during active military service. c. Paragraph 3-4 (LD (Line of Duty) Decisions). Under Federal law, Soldiers who aggravated an unfitting disability while on active duty had to meet the follow LOD criteria: the disability had to have been aggravated while the Soldier was entitled to basic pay, and the disability could not have been caused by the Soldier's intentional misconduct or willful neglect. d. Paragraph 4-19 (PEB Decisions – Common Criteria). The physical evaluation board (PEB) made findings and recommendations for each disability case based on the preponderance of evidence. (1) The PEB was to determine whether the Soldier is fit or unfit to perform her/her military duties, whether the disability was permanent in nature, and whether the disability met the criteria for compensation (i.e. ensuring the disability was aggravated while the Soldier was entitled to basic pay and on active duty for more than 30 days, and verifying the disability was not be the result of misconduct or willful neglect). (2) The PEB could decide a Soldier's disabling condition was EPTS; in these cases, if the Soldier's military service made the condition worse, a finding of aggravation had be to be considered. When the PEB determined the condition was aggravated, it then had to assess the degree of disability that was in excess of the degree that existed prior to entrance on active duty. 4. 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 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. //NOTHING FOLLOWS//