IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210013744 APPLICANT REQUESTS: change her uncharacterized discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs Summary of Benefits FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 she was administratively discharge due to behavior resulting in a sexual assault while in the service. 3. Review of the applicant's service records shows: a. She enlisted in the Regular Army on 12 June 2002. She was assigned to Fort Jackson, SC for training. b. She was frequently counseled by the chain of command for dereliction of duty, making a false statement to her commander, and her lack of Army Values and failure to adapt to the soldierization process. Her drill sergeant rated her poor in multiple areas under Army Values, Motivation, and Discipline. c. On 1 August 2002, the applicant's immediate commander notified the applicant of his intent to initiate separation action against her under the provisions of chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), due to entry-level performance and conduct: Failure to adapt to the military environment. The immediate commander recommended an entry-level separation. d. On 1 August 2002, the applicant acknowledged receipt of the separation notification in accordance with chapter 11 of AR 635-200. She subsequently consulted with counsel who advised her of the basis for the contemplated action to separate her for entry level performance, the effects of this separation, the rights available to her, and the effects of any action taken by her in waiving her rights. She acknowledged she understood if the request for discharge were approved, she would receive an entry-level separation with uncharacterized service. She further elected not to submit a statement in his own behalf. e. Subsequent to the applicant's acknowledgement, the immediate commander initiated separation action against her in accordance with chapter 11 of AR 635-200. f. The separation authority reviewed and approved the applicant's discharge under the provisions of chapter 11, AR 635-200, and directed the applicant’s service be uncharacterized. Accordingly, the applicant was discharged on 9 August 2002. g. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she was discharged due to entry-level performance and conduct in accordance with chapter 11 of AR 635-200 with uncharacterized service. She completed 1 months and 28 days (56 days) of creditable active military service. She was not awarded an MOS. h. There is no indication she petitioned the Army Discharge Review Board for a review of her discharge within that board's 15-year statute of limitations. 4. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. 5. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to her Uncharacterized discharge was due to PTSD she developed and an MST she experienced during her time in service. b. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and her military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was also reviewed. The military electronic medical record (AHLTA) was not reviewed, as it was not in use during her time in service. No hard copy military medical records or civilian medical documentation was provided for review. c. Review of the applicant’s military documentation indicates that she enlisted in the Army Reserve (Delayed Entry Program) on 22 Sep 2001 and subsequently transferred to the Regular Army on 12 Jun 2002. During her active duty period, she received at least three Developmental Counseling Forms between 15 Jul and 25 Jul 2002 for infractions including, “failure to adapt to military life,” making false statements to an NCO and officer about being on profile and having a medical appointment. A BCT Soldier in Training Performance Record, dated 01 Aug 2002 indicated, “performance in this Phase has been substandard.” A Report of Mental Status Evaluation, dated 30 Jul 2002, indicated normal behavior and thought content, as well as depressed mood. The provider further noted, “SM reports feelings of sadness, hopelessness, loss of appetite, periods of constant crying, and insomnia caused by nightmares for the past several weeks…not able to fire her weapon because it brings back memories of a shooting accident involving a family member approximately 11 years ago. SM is not motivated to remain in the military.” She was psychiatrically cleared for any administrative action. She received an Uncharacterized discharge on 09 Aug 2002 with DD 214 Narrative Reason for Separation, Entry Level Performance and Conduct. d. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). There was no available data for any medical or behavioral health notes, as well as no data on the problem list. e. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, trauma and stressor related symptoms/MST. As there is an association between trauma-stressor related symptoms/MST and avoidant behavior, there is a nexus between applicant’s symptoms and her absences and lackluster, substandard performance of her military duties. In addition, as there is an association between trauma-stressor related symptoms/MST and resistant, negative attitudes toward authority figures, there is a nexus between her condition and the disrespectful, deceptive behavior she demonstrated. Chronological review of her military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during her brief time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who experience an MST and develop trauma-stressor related symptoms in a noncombat military environment. f. Kurta Questions (1) The applicant did have a condition that may excuse or mitigate the discharge (i.e. trauma and stressor-related symptoms/MST). (2) The condition more likely than not existed and the traumatic events occurred during military service. (3) Finally, the trauma and stressor-related symptoms/MST actually does excuse or mitigate the discharge – trauma and stressor-related symptoms/MST mitigates for absences from duty obligations, substandard performance and disrespectful/deceptive behavior toward an NCO and officer. A discharge upgrade is recommended, as well as a change to the DD-214 Narrative Reason for Separation to indicate Chapter 5-17 – Condition, Not a Disability. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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. The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. Upon review of the applicant’s petition, available military records and the medical review, the Board made note of the advising official finding a nexus between her condition and the disrespectful, deceptive behavior she demonstrated. Chronological review of her military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during her brief time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who experience an MST and develop trauma- stressor related symptoms in a noncombat military environment. Soldiers are authorized and honorable discharge while in entry-level status only if they complete their active-duty schooling and earn their MOS. 2. The Board understands many sexual assault victims do not report. However, when prepondering evidence, there are sometimes symptoms of MST displayed by victims prior to their separation. Personal MST statements provided to the VA are not always corroborated. The Board took into consideration the factor the applicant was awarded VA benefits for MST. Based on a preponderance of evidence, the Board determined that the character of service and the narrative reason the applicant received upon separation was not in error or unjust. As a result, there is no basis for granting the applicant's request. 3. An uncharacterized discharge is not derogatory; it is recorded when a Soldier has not completed more than 180 days of creditable continuous active duty prior to initiation of separation. It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated as honorable or otherwise. 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, United States 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. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 describes the different types of service characterization. An uncharacterized separation is an entry-level separation. (1) A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status. The only exceptions are when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that, an honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. (2) For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. b. Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. It states when separation of a member in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter. This separation policy applies to enlisted members of the Regular Army who have completed no more than 180 days active duty on their current enlistment by the date of separation and have demonstrated they are not qualified for retention for one or more of the following reasons: * cannot or will not adapt socially or emotionally to military life * cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline * have demonstrated character and behavior characteristics not compatible with satisfactory continued service * failed to respond to counseling 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 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// ABCMR Record of Proceedings (cont) AR20210013744 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1