IN THE CASE OF: BOARD DATE: 15 August 2023 DOCKET NUMBER: AR20220009321 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 21 June 2011, to upgrade of his uncharacterized discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Personal Statement • Letters Regarding Emotional Support Animal • Letter from Department of Veterans Affairs (VA) • VA Medical Records FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in his application and personal letter, in effect: a. He is requesting his uncharacterized discharge be changed to honorable to match his character review from the VA due to in-service sexual harassment and physical injuries he sustained, while on duty at Fort Benning, GA. b. He sustained irreparable damage mentally and physically due to his service. He has been deemed totally and permanently disabled due to his service connected injuries and was given a 100 percent disability rating from the VA. c. Solely due to his military service, his quality of life has been completely destroyed. He is requesting the Board reconsider his character of service and change it from uncharacterized to honorable. d. Even with the injuries he sustained, racist remarks, and sexual harassment during his military service, he has tried his hardest to carry on and complete as much training as he could in 2011. As a result, he suffered irreparable mental and physical health conditions due to his determination to continue his military service. e. After his discharge, his weight has been steadily climbing due to the injuries he sustained on active duty. As a result, his health started to decline. During his service he acquired tinnitus, acute flat feet, he injured his hip, and had trouble walking due to his right ankle always wanting to roll. He also acquired the dining facility habit or eating disorder of eating hastily and eating his entire plate, which was burned into his mental subconscious as a direct result of his military service. He was not able to exercise due to his injuries and he started to become morbidly obese as a direct result of his service. f. He also acquired depression and anxiety from his service due to the harassment he received from his company and Drill Sergeants. The depression and anxiety have gotten worse, since he left the service, and he has been diagnosed with major depressive disorder. He has the feeling of hopelessness and being unable to finish anything as a result of the verbal and physical harassment, during his service. He has been unable to find stable gainful employment. He has been unemployed for over 9 years of the 10 since he left the service. Two of his employments lasted less than 3 months in the past 10 years. g. His tinnitus has been getting worse in the past 10 years with debilitating attacks of vertigo, blurry vision of the left eye, and muffled hearing in the left ear, and such attacks happen 20 to 30 times a month. h. He was diagnosed with Meniere's Disease in 2020 and is currently being treated by the VA Manhattan Harbor Campus in New York. He has been in and out of the emergency room at the VA multiple times a month since receiving eligibility. He is currently on Meclizine, Promethazine, Escitalopram, Hydroxyzine, and Triamterene to help manage his symptoms. i. He is unable to exercise due to his service connected orthopedic conditions and as a result has become obese. The VA recommended him for Bariatric Surgery. He is currently on the MOVE and Nutritional program to prepare for surgery in 2022. He was also diagnosed with Type 2 Diabetes in which he must take 100 mg of Metformin daily along with a restrictive diet to manage the disease. j. In 2015, he started getting sleep paralysis and sleep apnea. He would wake up during rapid eye movement sleep unable to move or breathe. These attacks would last two to five minutes and happened multiple times per night. In 2017, he received a sleep study in which he was diagnosed with obstructed sleep apnea. In 2021, the VA in Manhattan conducted a sleep study and prescribed him an Auto-CPAP machine. k. As a result of his military service, he has been unemployed, depressed, and has acquired multiple major health issues such as major depression, anxiety, and his quality of life has been significantly hampered and he has life risks of surgery to help him manage his health issues. His vertigo/Meniere's attacks happen daily and disrupt his daily activities. l. He was forced to move to New York in 2021 from Guam as the VA in Guam did not have the facilities nor the specialists to treat his conditions. As a result, he has caused financial distress to himself and his family because of the move to get treatment from the VA. He is pleading to the VA to consolidate his claims from 2021 to his original intent to file in 2018. 3. The applicant' service record contains the following documents for the Board's consideration: a. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 9 February 2011, shows the applicant enlisted in the Army National Guard (ARNG) for a period of 8 years. b. Orders Number 047-13, published by the Guam National Guard, dated 23 February 2011 ordered the applicant to Initial Active Duty Training (ADT) with a reporting date of 21 March 2011. c. DD Form 214 shows the applicant, as a member of the ARNG, entered active ADT on 21 March 2011. He was assigned to Fort Benning, GA. d. The applicant’s separation packet is not available for review. However, his DD Form 214 shows he was released from ADT and discharged on 21 June 2011, in accordance with chapter 11 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) with an uncharacterized discharge. He completed 3 months and 1 day of active service. He did not obtain a Military Occupational Specialty (MOS). e. National Guard Bureau Form 22 (Report of Separation and Record of Service) shows the applicant was discharged from the ARNG on 1 July 2011 in accordance with National Guard Regulation 600-200 (Enlisted Administrative Separations) with an uncharacterized character of service. The applicant did not obtain an MOS. f. A letter from and Army Discharge Review Board (ADRB), dated 28 March 2012, states after careful review of his application, military records, and all other available evidence, the ADRB determined the applicant was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of his discharge was denied. 4. The applicant provides the following documents for the Board's consideration: a. Three letters from a doctor, which state the applicant's high stress levels allowed for the approval for him to have an emotional support animal. The letters are available for the Board's consideration. b. A letter from the VA, dated 17 August 2022, which states the applicant was in the Army from 21 March 2011 through 21 June 2011 and his character of service was honorable. He was rated at 100 percent combined service-connected disability effective 1 December 2021. c. VA Medical records which include his list of medications, VA problem list, VA notes, VA immunizations, VA laboratory results, VA vitals and readings, VA radiology reports, and Department of Defense military service information. His problem list, shows the applicant has vertigo, generalized anxiety disorder, persistent depressive disorder, obstructive sleep apnea of adult, obesity, diabetes mellitus, and hypertension. The medical documents are available for the Board's consideration. 5. On 9 March 2023, the Criminal Investigation Division, submitted a memorandum in response to the Army Review Boards Agency's (ARBA) request for a sanitized copy of information regarding the applicant. A search of the Army criminal file indexes reveled no records pertaining to the applicant. 6. Based on the applicant's VA records showing he suffers from physical and mental health issues due to his military, service, the ARBA medical staff provided a medical review for the Board's consideration. 7. MEDICAL REVIEW: a. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 21 June 2011 uncharacterized discharge and, in essence, a referral to the Disability Evaluation System. He states: “Due to in-service sexual harassment, and physical injuries sustained while on duty at Fort Benning, GA C. Co 1-50th. I have sustained irreparable damage mentally, and physically due to service. I have been deemed totally and permanently disabled due to my service-connected disabilities thus a 100% P&T [permanent and total] rating from the VA. Solely due to my military service my quality of life has been completely destroyed. I'm requesting that the board reconsider my Character of Service and change it from Uncharacterized to Honorable. Even with the injuries sustained, racist remarks in regards to my race, and sexual harassment during my military service, I've tried my hardest to carry on, and complete as much training as I can during 2011. As a result, I've suffered irreparable mental and physical health conditions due to my determination to continue my military service.” c. 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 Army National Guard Solider entered the Regular Army for training on 21 March 2011 and received an uncharacterized discharge on 21 June 2011 under provisions provided in chapter 11 of AR 635-200, Personnel Separations – Enlisted Personnel (17 December 2009), for falling below entry level performance and conduct standards. d. A Report of Separation and Record of Service (NGB Form 22) shows the applicant entered the Guam Army National Guard on 9 February 2011 and was discharged with an uncharacterized characterization of service on 1 July 2011. e. The request for a discharge upgrade was denied by the ADRB on 29 January 2004 (AR201100194122). Rather than repeat their findings here, the board is referred to the case report for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. f. From the applicant’s “Psychosocial/Initial Evaluation Consult Note” completed at a Veterans Hospital Administration facility on 8 November 2021: “30, Pacific Islander, male, unemployed, securely housed, single, 30% SC, was referred by PCP [primary care provider] (possibly ENT [ear, nose, and throat aka otolaryngology]) for anxiety stemming from both depression and physical ailments including tinnitus, vertigo, racing heart (panic attacks), sleep apnea and sleep paralysis. Anxiety starting in 2020 that is now affecting multiple aspects in his life. Currently being treated for Meniere's disease (vertigo and tinnitus) causing blurry vision, short term memory loss and 5x to the ER in the past month. Reports 24 episodes of vertigo in the past month. Has felt depressed to 10 years: Anhedonia, feelings of hopelessness and numbness. Sleep apnea, and sleep paralysis, fatigue and daytime drowsiness … Section 5: Trauma History Reports verbal abuse and harassment from Drill Sergeants. Injured during the work marches. Wounded ankle, hip and back. Got heat stroke 2x. Reports spending time in juvenile detention at 16 (sophomore in HS [high school]) due to truancy. Dropped out of HS shortly after and earned his GED. Truancy stemmed from the loss of his longtime girlfriend (from 6th-10th grade) who died from cancer. He provided support for her during her treatment. MST Screening: Patient denies experiencing military sexual trauma (MST) in the past. g. Review of his records in JLV shows he has been awarded four VA service-connected disability ratings: Dysthymic disorder (100%), Flat foot condition (10%), Limited motion of ankle (10%), and Tinnitus (10%). h. Neither his separation packet nor documentation addressing his administrative separation for active duty was submitted with the application or uploaded into iPERMS. i. Without knowledge of the reason(s) for his ELS separation, a recommendation for a recharacterization of service cannot be made. That being said, the applicant contends he was the victim of sexual harassment while in the military and, as per Liberal Consideration Policies, his contention alone is sufficient to warrant consideration by the board. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The applicant’s separation packet is not available for review. Other evidence shows he was discharged from ADT for entry level performance and conduct with an uncharacterized discharge. He completed 3 months and 1 day of active service. He did not obtain an MOS. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The Board reviewed and agreed with the medical advisory opinion finding insufficient information to determine if he had any mitigating medical circumstances. Also, the applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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. 8/15/2023 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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed policies and procedures for enlisted administrative separation. In pertinent part, it states: a. A separation would be described as an entry level separation with service uncharacterized if processing was initiated while a Soldier is in entry level status. For Army National Guard (ARNG) and U.S. Army Reserve (USAR) Soldiers, entry level status began upon enlistment, and terminated either on the completion of one continuous period of 180 days (counting from the start of training), or, for Soldiers ordered to IADT for the split or alternate training option, 90 days after beginning Phase II (advanced individual training). Soldiers completing Phase I (basic training or basic combat training) remain in entry level status until 90 days after beginning Phase II. b. Paragraph 4-2 (Discharge or Release from Active Duty upon Termination of Enlistment, and Other Periods of Active Duty or Active Duty for Training) stated, ARNG and USAR Solders who successfully completed a period of initial active duty for training were to be out-processed and returned to their respective RC units; their character of service, while in an entry level status, would be listed as uncharacterized. c. (Secretarial Plenary Authority) Separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interests of the Army. The service of Soldiers separated under this chapter will be characterized as honorable or under honorable conditions. 3. AR 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system. It states a DD Form 214 will be prepared for RC Soldiers awarded an MOS even if active duty is less than 90 days. RC Soldiers completing active duty that results in the award of a military occupational specialty (MOS), even when the active duty period was less than 90 days (for example, completion of the advanced individual training component of the Army National Guard of the United States (ARNGUS) Alternate Training Program or USAR Split Training Program). When a RC Soldier successfully completes initial active duty training the character of service is Honorable unless directed otherwise by the separation approval authority. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. 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; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 6. 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. 7. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (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 Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//