IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20210017583 APPLICANT’S REQUEST: Upgrade of her uncharacterized service to honorable or general under honorable conditions. 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) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Applicant self-authored congressional letter, dated 21 November 2012 * Applicant Email, dated 12 July 2022 FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Discharge Review Board or the Army Board for Correction of Military Records (ABCMR).? 2. The applicant states her uncharacterized discharge was unjust. She followed proper protocol and was only doing what was best for her body at the current time. a. She joined the delayed entry program in the PA Army National Guard (ARNG) during her senior year of high school in January 1998. She attended drills every month and went to basic combat training shortly after her high school graduation in September 1998. A few weeks into basic combat training at Fort Jackson, SC, she woke up with severe pain in her left leg. Her entire left leg was swollen from her kneecap to her foot, and she could barely walk. b. Eventually the drill sergeant allowed her to visit the medics on base. She received an x-ray, which showed no broken bones, and the injury was diagnosed as a stress fracture. She was given pain medication and sent back to training. Shortly thereafter, she was ordered to the physical therapy unit. Enduring the pain for another week, the applicant requested medical leave to see a "real" doctor. She was then told if she left the base, the only discharge they would issue would be dishonorable because she refused the rehabilitation that was offered to her. At this point, she was desperate to return home to seek further medical advice as she knew there was something seriously wrong with her knee, so she signed discharge papers under pressure. c. Upon return to in November 1998, she was able to see a physician affiliated with Conemaugh Health System. A magnetic resonance imaging was performed on her leg which showed she had a torn meniscus. An arthroscopic surgery was performed on her left knee by Dr. Orthopedic and Sports Medicine, Inc. d. To this day, the uncharacterized discharge comes back to haunt her because she is ineligible to receive veterans’ preference, which prevents her from obtaining government employment. 3. The applicant’s record is void of facts and circumstances which led to her discharge from the Army. 4. The applicant in support of her application provides a DD Form 214 that shows: a. On 4 September 1998, she entered active duty to complete training and was assigned to Company B, 1st Battalion, 61st Infantry Training Command, Fort Jackson, SC. b. On 9 October 1998, she was released from active-duty training and discharged from the Reserve of the Army and returned to the ARNG. The applicant was discharged from active duty under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 11 (Entry Level Performance and Conduct) with uncharacterized service. She completed 1 month and 6 days of net active service during this period and was not awarded or authorized an award. 5. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 7. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the applicant’s previous ABCMR denial, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of her 9 October 1998 uncharacterized discharge and, in essence, a referral to the Disability Evaluation System. She states: (1) “A few weeks into my BCT {basic combat training} at Fort Jackson, South Carolina, I woke up with severe pain in my left leg. My entire left leg was swollen from my kneecap to my foot and I could barely walk. I was still forced to run the two miles at physical training (PT) for a few days. The Drill Sergeant finally allowed me to visit the Medics on base. (2) The only test that was performed was an x-ray, which showed no broken bones. The injury was diagnosed as a stress fracture. I was given pain medication and sent along my way. Shortly thereafter, I was ordered to the physical therapy unit. I endured the pain for another week and finally requested medical leave so I could go home to see a "real" doctor. They, of course, tried to keep me there because I had an "A+" rating. (3) I was then told if I left the base, the only discharge they would issue would be dishonorable because I refused the rehabilitation they offered to me. At this point, I was desperate to return home to seek further medical advice as I knew there was something seriously wrong with my knee so I signed the discharge papers under pressure. As I saw it at that time, there was no other way to leave the base. I was given no other options. (4) Upon my return to in November of 1998, I immediately scheduled an appointment with a physician affiliated with. An MRI was performed on my leg. The test results showed I had a tom meniscus. The doctor told me had I stayed in Fort Jackson another two weeks and ran my two miles every day, I would have ruined my knee for life at the ripe age of 18! The end result: I had arthroscopic surgery performed on my left knee by Dr b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of Service under consideration shows the former Guard Soldier entered active duty for basic combat training on 4 September 1998 and received an uncharacterized discharge on 9 October 1998 under provisions provided in chapter 11 of AR 635-200, Personnel Separations – Enlisted Personnel (26 June 1996), for falling below entry level performance and conduct standards. c. No medical documentation was submitted with the application and because of the period of service under consideration, there are no encounters in AHLTA. d. The absent of medical documentation does not affect the applicant’s characterization of service. Had she been diagnosed with a meniscus tear within a few weeks of starting BCT, she would quite likely been separated under paragraph 5-11 of AR 635-200: Separation of personnel who did not meet procurement medical fitness standards. Paragraph 5-11a: “a. Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on AD or ADT for initial entry training, will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entrance on AD for RA, or during ADT for initial entry training for ARNGUS and USAR, which— (1) Would have permanently or temporarily disqualified him or her for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time. (2) Does not disqualify him or her for retention in the military service under the provisions of AR 40–501 {Standards of Medical Fitness}, chapter 3.” d. Paragraph 2-10c(2) of AR 40-501 (30 August 1995) states “Physical findings of an unstable or internally deranged joint” is a cause for rejection. A torn meniscus is considered an internal derangement of the knee joint. A meniscus tear is not disqualifying under AR 40-501 chapter 3 retention standards. Discharge under paragraph 5-11 also results in an uncharacterized discharge. e. It is the opinion of the ARBA medical advisor that neither an upgrade of her discharge nor a referral of this case to the Disability Evaluation System is indicated. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, and the reason for her separation. The Board considered the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding her entry-level uncharacterized discharge being warranted. Based on a preponderance of the evidence, the Board determined the fact that the applicant’s service was uncharacterized is not in error or unjust. 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 State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the 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. 2. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Chapter 11 of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. This provision applied to individuals who had demonstrated they were not qualified for retention because they: * could not adapt socially or emotionally to military life * lacked the aptitude, ability, motivation, or self-discipline for military service * demonstrated characteristics not compatible with satisfactory continued service b. The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action). An uncharacterized description of service was required for separation under this chapter. c. It states in pertinent part that an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. 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. d. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. e. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. f. Uncharacterized Separations. A separation was deemed entry-level status when commanders initiated the action while the Soldier was within the first 180 days of continuous active duty. Soldiers separated in an entry-level status were issued an uncharacterized character of service. On a case-by-case basis, and when clearly warranted due to unusual circumstances involving personal conduct or duty performance, the Secretary of the Army could grant a Soldier an honorable character of service. g. Counseling and rehabilitation requirements are essential when entry-level performance and conduct are the reason for separation. Commanders are to ensure counseling is initiated and at least one formal counseling session is required before separation proceedings is started. (1) The regulation also stipulated commanders use of the notification procedure when advising the Soldier of the contemplated separation action. The notification procedure involved giving the Soldier a written notice of the proposed separation, which specified the type of separation, the reason for the commander's action, and the Soldier's rights under the regulation; those rights include consultation with military counsel, submission of statements in his/her own behalf, copies of documents to be sent to the separation authority, and the ability to waive the aforementioned rights in writing. (2) The Soldier was to indicate on an "Election of Rights" document whether he/she consulted with counsel, was submitting matters in his/her own behalf, and what rights he/she was asserting or waiving. 3. 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) AR20210017583 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1