IN THE CASE OF: BOARD DATE: 7 November 2022 DOCKET NUMBER: AR20220004646 APPLICANT REQUESTS: . correction of her records to show she was discharged due to a service-connected medical disability . personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings (front page) . DD Form 214 (Certificate of Release or Discharge from Active Duty) . 35 pages of military medical and personnel records . Request to the National Personnel Records Center (NPRC) for a third-party military records under the Freedom of Information Act (FOIA) and NPRC's response . NPRC response pertaining to the applicant's request for her military records 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: a. She was unaware that it was possible to upgrade a military discharge. She is requesting to be recognized for the sexual assault and physical injury she sustained during her military service. In 1995, she was sexually assaulted by her recruiter (Sergeant (SGT) ), a few months before basic combat training (BCT). The incident occurred at home while her parents were at work. She never reported the assault. After she signed up for the Army, she spent a great deal of time with SGT F at various events with other recruits in preparation for BCT. SGT was 32, recently divorced with a child, and already engaged. Over time, she was made aware that SGT was attracted to her based on his comments and behaviors which were not reciprocated. She was 21 and a new college graduate with a degree in law enforcement. b. She joined the U.S. Army Reserve (USAR), Military Police Corps, to fortify her anticipated career in law enforcement. She also comes from a proud military family. Her physical appearance and gender were a hindrance to her having been a teen model. She was frequently pursued by men and believed adding military experience to her career would shift the attention toward respect and equality. The assault that occurred by her trusted military mentor before BCT began directly influenced the events that occurred during BCT. c. In October 1995, training commenced and she suffered a herniated disk during a training exercise. The Department of Veterans Affairs (VA) did not provide medical imaging beyond x-rays and the soft-tissue injury was not identified. She attended physical therapy and continued training (with some limits) which exacerbated the injury. A second assault incident occurred when she was tasked with office duty, alone with one other Soldier in her platoon, Private (PVT) . PVT forcibly shoved her into the closet while placing his hands and mouth on her mouth and body (kissing and groping). She was successful in stopping his actions. She did not report the incident. Instead, she requested to speak with the chaplain. Her intention was to disclose the assaults to the chaplain. Instead, she was reprimanded by the first sergeant and her drill sergeant for refusing to disclose the nature of her request to them. Due to the lack of support and trust, she chose not to disclose the incidents and her mental health further deteriorated. She wrote a letter to her college roommate revealing thoughts of suicide. She learned her college roommate shared that information with joint friends, and she never spoke to her again. d. She devised a plan to use her spinal injury to get discharged from the Army. It was her belief no one could "quit" the military. She learned Soldiers were discharged for undisclosed injuries prior to training. Attached records show she provided a narrative that she was in a "go-kart accident 4 days prior to training" and "hit a ditch at speeds of 60 miles per hour [mph]." Notably, go-karts do not reach 60 mph nor have speedometers. The notes state she did not seek medical attention during the so-called accident. No medical records identify any injuries consistent with a high impact accident only "days" before training. Consequently, she received a medical discharge listed as "not service connected." e. Post-discharge at her workplace, SGT stopped in unannounced wearing civilian clothes. He stated he was "Kicked out [of the Army]" because "They called me a baby raper." No details were provided, but the inference was SGT was discharged for sexual misconduct. On 30 October 2019, she submitted a request for "any and all military service records available under the FOIA for SGT in hopes of obtaining supporting evidence of her recruiter's character and conduct. Unfortunately, her request was denied due to a lack of information. In 2021, she considered filing a report of the assault, but the statute of limitations expired in Indiana. In May 2021, she contacted the Army Sexual Assault Response Coordinator and learned their function only applies to active duty. Pursuit of filing a complaint was unable to be completed. f. Apologetically, she regrets her dishonesty to the military. Her attempt to seek help was admonished. She was incapable of managing trauma and in physical pain. She believed she had no other options to leave the military. Her ambitions and investments in a career in law enforcement were destroyed. Her emotional and mental health were severely impacted, and she has a life-long injury that limits her life experiences. She still has nightmares, panic attacks, and symptoms of trauma that caused issues in her relationships. She has been divorced twice. g. The impetus for this request was motivated by her children. Her 12-year-old son has a deep fascination with military history and is very patriotic. He talks about it all the time which forced her to face her memories. In September 2019, she requested copies of her records. She learned of positive changes in the military for handling sexual assault. Also, she learned it is possible to submit this request to have her reason for separation changed to reflect the true nature of her separation as being "service connected." Changing her separation to being "service connected" will give her a sense of acknowledgment and some closure for the wrong-doings of those she should have been able to trust. She understands her reason for separation is her own fault. Hopefully the underlying circumstances will appeal to your understanding of her actions at age 21. h. She continues to suffer from depression, anxiety, and trauma. She was diagnosed with depression, anxiety disorder, and post-traumatic stress disorder. She contacted the practitioners for records, but they were purged due to the distance of time. In 2009, she was given anti-depressants (Lexapro), but ceased due to adverse side effects. During 2010-2011, she saw a therapist. During 2012-2014, she saw a psychiatrist who prescribed Trazadone, but she ceased taking due to adverse side effects. In 2015, during her second divorce, she invested months of her life and thousands of dollars in research-based holistic therapies to self-manage mental health without pharmaceuticals. These include certifications in yoga instructor training (200 hours, 2015), meditation instructor training (200 hours, 2015), and neurofeedback training (2015-2018). Though greatly beneficial, she has never addressed the assaults in individual therapy. In May 2021, she contacted the VA assault hotline and started conversations for the first time. She began the initial steps and she hopes to find a therapist through the VA. i. During training her injury was a herniated disk in the L4/L5 lower lumbar. The soft tissue damage was realized post-discharge after receiving advanced medical imaging. Since 1995 she has seen numerous physicians from neurologists to orthopedic surgeons to chiropractors. On 5 March 2005, at age 31, an orthopedist diagnosed her with degenerative disk disease and arthritis in the L4/L5 vertebra with continued disk protrusion into the spinal cord (where the injury occurred in training). Treatments included chiropractic spinal alignments, cortisone injections, and spinal stimulation. The last option was surgery, but she refused. She stopped seeking treatments and tolerated the pain and limitations through exercise and a healthy lifestyle. She contacted all past physicians for records, but all were purged due to time. She does possess oversized MRI films but presumed this insufficient for the Board's interests. She is very appreciative of the Board's time and consideration of her request. 3. The applicant enlisted in the USAR on 24 July 1995 for training in military occupational specialty 95B (Military Policeman). She entered initial active duty for training (IADT) on 25 October 1995. 4. A Standard Form (SF) 600 (Chronological Record of Medical Care) shows that on 1 November 1995 (first week of training), she was examined for a complaint of low back pain. An SF 519-B (Radiologic Consultation Request/Report) shows she underwent a radiology exam of the lumbosacral spine. The SF 519-B shows the following findings: Bone density is excellent, vertebral body height and discs space are well maintained, curvature is excellent, and there are no changes of an arthropathic, congenital or traumatic nature. The study is within normal limits. 5. On 14 December 1995, an EPSBD found the applicant medically unfit for enlistment in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, due to recurrent back pain secondary to existed prior to service lumbosacral sprain and dorso-lumbo strain during racing accident. The evaluating physician noted the following: a. History of present illness: As stated by the patient, noted as follows: With onset of basic training she began complaining of L-S back pain. All told, she has been seen x 6 and has had 2 weeks physical therapy without any decrease in pain. b. Past History and Review of Systems: Noncontributory, except as follows: There is no history of injury at Fortt McClellan. Four days before coming on active duty she was involved in a racing accident. She ran off course in a go-cart and slammed into a ditch at 60 mph. She did not roll over. "NO LOC." c. Recommendation: Though Soldier meets retention standards under the provisions of Army Regulation 40-501, chapter 3, the Soldier does not meet entrance standards as noted above. It is felt to be in the best interest of the Soldier medically and the U.S. Government to separate the Soldier from active duty. Therefore, recommend separation from the military under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11 (Separation of personnel who did not meet procurement medical fitness standards) for a condition noted within the first 180 days of active duty or IADT that existed prior to service and is not service aggravated. 6. On 15 December 1995, the applicant was informed of the medical findings. She acknowledged she understood that legal advice of an attorney employed by the Army was available to her or that she could consult civilian counsel at her own expense. She also acknowledged she understood that she could request to be discharged without delay or to request retention on active duty. If retained, she could be involuntarily reclassified into another military occupational specialty based upon her medical condition. She concurred with the proceedings and requested to be discharged from the U.S. Army without delay. 7. On 15 December 1995, the applicant's unit executive officer recommended her separation from the Army. On the same date, the separation authority approved the recommendation and directed her discharge from the Army. 8. The applicant's DD Form 214 shows she was discharged on 21 December 1995 under the provisions of Army Regulation 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards. The DD Form 214 also shows she was credited with 1 month and 27 days of active service. 9. 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 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 uncharacterized discharge. She states: “I was unaware that it was possible to upgrade my military discharge. My request is to be recognized for the sexual assault and physical injury sustained during my military service.” b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. Her DD 214 shows the former USAR Soldier entered active duty for Initial Entry Training on 25 October 1995 and received an uncharacterized discharge on 21 December 1995 under authority provided by paragraph 5-11 of AR 635-200, Personnel Separations – Enlisted Personnel (17 September 1990): Separation of personnel who did not meet procurement medical fitness. c. The applicant was referred to an entry physical standards board (EPSBD) for low back pain IAW paragraph 5-11 of AR 635-40. These boards are convened IAW paragraph 7-12 of AR 40-400, Patient Administration. This process is for enlisted Soldiers who within their first 6 months of active service are found to have a preexisting condition which does not meet the enlistment standard in chapter 2 of AR 40-501, Standards of Medical Fitness, but does meet the chapter 3 retention standard of the same regulation. The fourth criterion for this process is that the preexisting condition was not permanently service aggravated. d. From her 14 December 1995 Entrance Physical Standard Board (EPSBD) Proceedings (DA Form 4707): (1) History of Present Illness: 18-year-old white female arrived at Ft. McClellan on 10 October 1995. With onset of basic training, she began complaining of lumbosacral back pain … There is no history of injury at Ft. McClellan. Four days before coming on active duty, she was involved in a racing accident. She ran off the course in a go-cart and slammed into a ditch at 60mph … (2) DIAGNOSES: Recurrent Back Pain secondary to EPTS {existed prior to service} Lumbosacral strain during racing accident. (3) Unfit UP AR 40-501, Chapter 2 , Para 2- 36-1. (4) RECOMMENDATION: Though soldier meets retention standards UP AR 40­501, Chapter 3 , the soldier does not meet entrance standards as noted above. It is felt to be in the best interest of the soldier medically and the U. S. Government to separate the soldier from active duty. Therefore, recommend separation from the military UP AR 635 -200 , para 5-11 for a condition noted within the first 180 days of active duty or IADT that existed prior to service and is not service aggravated . e. The EPSBD determined the condition had existed prior to service (EPTS), failed the enlistment standard of AR 40-501, had not been permanently aggravated by his military service, and was not compatible with continued service. The applicant concurred with the findings on 15 December 1995 when she marked the box: “I concur with these proceedings and request to be discharged from the US Army without delay. f. In her self-authored statement, the applicant states she was sexually assaulted be her recruiter prior to entering active duty, by a fellow Soldier while on active duty, and that she made up the story of the go-cart accident to get out of the Army. “I devised a plan to use my spinal injury to get discharged from the Army. It was my belief no one could "quit" the military. I learned soldiers were discharged for undisclosed injuries prior to training. Attached records show I provided a narrative that I was in a "go-kart accident 4 days prior to training" and "hit a ditch at speeds of 60 miles per hour". Notably, go-karts do not reach 60 mph nor have speedometers. The notes state I did not seek medical attention during the so- called accident. No medical records identify any injuries consistent with a high impact accident only "days" before training. g. Review of her records in JLV shows only one encounter: A 19 May 2021 suicide hotline call for mental health/illness, military sexual trauma, and information. h. It is the opinion of the Agency Medical Advisor that her history of military sexual trauma with the resulting strong desire to get away from the military was the likely cause for her discharge under 5-11 of AR 636-200. However, there is insufficient probative evidence to warrant a referral of her case to the Disability Evaluation System. i. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) YES (2) Did the condition exist or experience occur during military service? (a) YES (3) Does the condition or experience actually excuse or mitigate the discharge? (a) YES BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that a portion of relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for liberal consideration of discharge requests based on military sexual trauma. The Board considered the circumstances leading to her discharge and the reason for separation. Based on the documentation available for review, the Board found sufficient evidence of in-service mitigating factors to weigh in favor of a clemency determination and a portion of relief is warranted. 3. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to relief in excess of that stated above. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a new DD Form 214 for the period ending for the period ending 21 December 1995 showing in: • item 25 (Separation Authority): Army Regulation 635-200 • item 26 (Separation Code): JFF • item 27 (Reentry Code): 1 • item 28 (Narrative Reason for Separation): Secretarial Authority. 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-11 of the regulation in effect at the time states 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 active duty or active duty training for initial entry training, may be separated. Such conditions must be discovered during the first six months of active duty. Such findings will result in an EPSBD. This board must be convened within the Soldier’s first six months of active duty. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within six months of the Soldier’s initial entrance on active duty for Regular Army Soldiers that: a. Would have permanently or temporarily disqualified the Soldier for entry into the ABCMR Record of Proceedings (cont) AR20220004646 military service or entry on active duty or active duty training for initial entry training had it been detected at that time. b. Does not disqualify the Soldier for retention in the military service per Army Regulation 40-501, chapter 3. 2. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. 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, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 5 pertains to separation for the convenience of the Government. Paragraph 5-8, states Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. Specific reasons for separation because of parenthood include: . inability to perform prescribed duties satisfactorily . repeated absenteeism ABCMR Record of Proceedings (cont) AR20220004646 . repeated tardiness . inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty . non-availability for worldwide assignment or deployment according to the needs of the Army b. 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 an entry-level status. 6. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 9. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by ARBA be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to ABCMR applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLO