IN THE CASE OF:   
 
  BOARD DATE: 12 September 2023 
 
  DOCKET NUMBER: AR20220009462 
 
 
APPLICANT REQUESTS:  a third reconsideration of her previous requests for: 
 
• Constructive credit sufficient enough to allow for an active duty retirement; or, 

• Temporary Early Retirement under the TERA program in place at time of discharge 


 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
Counsel’s request for reconsideration  
 
FACTS: 
 
1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Dockets Number: 
 
• AR20120007772 on 13 December 2012 

• AR20180005788 on 28 January 2019 

• AR20210012505 on 28 April 2022 


 
2.  The applicant’s counsel states he received the last Board’s decision that indicated that the decision represented final agency action. This is a request for another reconsideration due to significant factual errors in the decisional document. The applicant who is rated 100% by the Department of Veterans Affairs for post-traumatic stress disorder (PTSD) related to a military sexual trauma should not have to bear the burden of federal litigation to correct those errors. The applicant requested constructive service credit sufficient for retirement or Temporary Early Retirement. The previous Medical Advisory Opinion recommended TERA. The Board declined that recommendation based on an erroneous summary of facts. The Board erroneously considered a promotion request that had been withdrawn. 
 
 a.  The decretal paragraph states: “After reviewing the application…the Board determined relief was not warranted. Based upon the available documentation showing applicant only served 14 years, 4 months and 21 days (and to qualify for TERA you 
must serve a minimum of 15 years of service)…”  The fundamental problem with this decision is that the applicant had over 17 years of service – not the 14 years, 4 months and 21 days cited in the decision. The fact that she had 17 years of service is reflected in several places in the decisional document: The Medical Advisory Opinion noted her 17 years of service; Paragraph 4a notes that she enlisted from 1976 to 1993 – which is 17 years and 29 days of completed service; and Paragraph 10 (c) notes that she has over 17 years of service. 
 
 b.  The Decisional Document made a number of other significant errors that belie a lack of attention to detail including repeatedly indicating that the applicant is rated by the VA at 70% for PTSD. She is, in fact, 100% disabled largely for PTSD.  
 
 c.  The Medical Advisory Opinion in paragraph 10 (n) wrote: “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, PTSD/MST. As there is an association between PTSD/MST and the avoidant behavior, there is a nexus between applicant’s condition and her absences from formation, as well as substandard performance and judgement. Also, as there is an association between PTSD/MST and resistant, hostile attitudes toward authority figures, there is a nexus between her PTSD/MST symptoms and the disrespectful, interpersonally problematic behavior with superiors and peers she demonstrated in her unit. Chronological review of her military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during her time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD and experience MSTs in a noncombat military environment.” The Medical Advisory Opinion ultimately concluded that “[d]ue to these recommendations, reconsideration of a Temporary Early Retirement (TERA) is encouraged as well.” The Board refused that recommendation wrongly believing that the applicant only had 14 years of service. 
 
3.  Review of the applicant’s service records shows: 
 
 a.  The applicant initially enlisted in the Regular Army on 22 January 1976, and she was honorably discharged on 28 September 1978 for immediate reenlistment, after completing 2 years, 8 months, and 7 days of active service. She held military occupational specialty (MOS) 94B, Cook.  
 
 b.  She reenlisted on 29 September 1978. She was promoted to the rank of staff sergeant (SSG)/E-6 on 1 April 1983. On or about February 1985, she entered MOS training at the U.S. Army Intelligence Center and School, Fort Huachuca, AZ, for MOS 97B (Counter-Intelligence Special Agent). 
 
 c.  On 21 April 1986, she was reprimanded for personal misconduct prejudicial to the good order and discipline. The letter of reprimand indicates she had been absent from company formation, twice. She has established a trend of missing formation or being late to formation during her assignment and was given a company grade Article 15 in March 1986. The General Court-Martial Convening Authority) directed the filing of the letter of reprimand in the applicant's official military personnel file.  
 
 d.  On 27 October 1989, the applicant received a relief for cause DA Form 2166- 7 (NCO Evaluation Report (NCOER)) for the period February through October 1989. Her duty title was counter intelligence agent wherein she was responsible for conducting security and incident investigations. 
 
  (1)  Part IV (Army Values) shows the rater placed an "X" in the "No" blocks for one or more Values. 
 
  (2) Part IV (Values/NCO) shows the rater entered these bullet comments: 
 
• has conflict with superiors and peers 

• does not always obey orders to the letter or spirit 

• conspired to falsify official documents to establish accountability 


 
  (3)  Part Vlb (Competence) shows the rater placed an "X" in the needs improvement (some) block and stated she displayed poor judgement on several occasions. 
 
  (4)  Part IVd (Leadership) shows the rater placed an "X" in the needs improvement (much) block and stated she does not set an acceptable example for junior Soldiers to follow. 
 
  (5)  Part IVf (Responsibility and Accountability) shows the rater placed an "X" in the needs improvement (much) block and stated she conspired to falsify documents/receipts to establish accountability, which is the reason for relief. The Soldier was notified of her infractions. 
 
  (6)  Part V (Overall Performance and Potential) shows her senior rater rated her performance as marginal. The senior rater provided the following bullet comments: 
 
• Soldier was relieved for falsifying an official government document 

• potential for retention in current MOS is poor, at best 

• Soldier should be reclassified into secondary MOS 


 
 d.  In March 1990, she was advised of the intent to revoke her security clearance and access to Sensitive Compartmented Information (SCI). The action was based upon 
her command's request that she be medically evaluated due to a multitude of difficulties, including marital problems, relational problems in her unit, judgment errors, and unethical behavior. She was diagnosed with an adjustment disorder with depressed mood, resolving, and hysteric and passive aggressive traits. The applicant's security clearance and SCI access eligibility were ultimately revoked.  
 
 e.  On 30 July 1990, she reenlisted in the Regular Army for 5 years, and in 1991, she completed the 8-week Administrative Specialist, MOS 71L, Course at Fort Jackson, SC. Additionally, on 17 January 1991, Headquarters, U.S. Army Training Center and Fort Jackson, published Orders 012-408 withdrawing MOS 97B and awarding MOS 71L and secondary MOS 97B. 
 
 f.  The applicant received an NCOER for the period January 1991 through May 1991, a 5 month evaluation. She was performing duties in MOS 71L (Administrative NCO).   
 
  (1)  Part IV (Army Values) shows the rater placed an "X" in the "No" the block for one or more Values (Commitment). 
 
  (2)  Part IV (Values/NCO) shows the rater entered one bullet comment: Prioritization of duty responsibilities, teamwork and personal needs are not well balanced. 
 
  (3)  Part IV (Values/NCO Responsibilities) shows she received a rating of "Success" for her competence, physical fitness, leadership, training, responsibility and accountability. 
 
  (4)  Part V (Overall Performance and Potential) shows her senior rater rated her performance as fully capable. The senior rater provided the following bullet comments: 
 
• often has conflict with supervisor 

• displayed poor judgement on occasion 

• teamwork and personnel needs are not well balanced 


 
  (5)  Her senior rater said her overall performance and overall potential for increased responsibility was fair. 
 
g.  On 16 August 1991 the applicant was reassigned to Fort Carson, CO, where she assumed the duties of platoon sergeant in duty MOS 71L for the post Replacement Detachment.  
 
 h.  The applicant received an NCOER for the period June 1991 through May 1992. This NCOER shows:  
 
  (1)  Part IV (Values/NCO Responsibilities), paragraph c (Leadership), shows the rater stated the applicant needs to concentrate on working as a member of the team and put mission above her own agenda. 
 
  (2)  Part V (Overall Performance and Potential) shows her senior rater assessed her overall performance as "fair" and her overall potential for promotion and/or service in positions of greater responsibility as "fair." He stated she was proficient in her MOS and that additional leadership opportunities will aid in her continued development. 
 
 i.  On 8 February 1993, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful in deportment toward a superior noncommissioned officer (NCO). Her punishment was reduction to sergeant (SGT)/E-5.  
 
 j.  On 10 February 1993, Headquarters, 4th Infantry Division, issued Orders41-913, directing the applicant's discharge in the rank of SGT/pay grade E-5 with entitlement to full separation pay in accordance with Title 10, U.S. Code, section 1174.  
 
k.  She was honorably discharged on 19 February 1993, under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 16-8, by reason of her selection for elimination under the Qualitative Retention Program (Qualitative Management Program (QMP)). She was discharged in the rank of SGT/E-5. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows she completed 14 years, 4 months, and 21 days of active service this period and 2 years, 8 months, and 7 days of total prior active service. 
 
4.  On 13 May 2008 (AR20070019032) the Board denied a portion of her request that pertained to changing the separation code, reentry code, and narrative reason for separation. The Board, however, corrected the separation authority (regulation) since it was improperly listed on her DD Form 214. She was issued a DD Form 215 (Correction to DD Form 215) correcting the authority for separation from "AR 200-635,paragraph 16-8" to "AR 635-200, paragraph 16-8." No other relief was granted. 
 
5.  On 13 December 2012 (AR20120007772), the Board denied her request to show she was retired under the Temporary Early Retirement Act (TERA). In this request the applicant raised the issue of sexual trauma noting the VA had rated her for PTSD based on Military Sexual Trauma (MST). She did not provide any substantiation of the diagnosis or evidence or argument as to what the diagnosis had to do with her application for an early retirement. The Board determined:  
 
 a.  The applicant was discharged accordingly on 19 February 1993 with entitlement to separation pay. Her DD Form 214 shows she completed a total of 17 years 28 days 
of active Federal service. The MILPER message for the FY93 TERA prescribed the eligibility requirements for early retirement. A review of her record shows she did not meet the eligibility criteria for early retirement under this program. She did not hold an identified primary MOS at the time. and she was separated prior to implementation of the program. 
 
 b.  The Army QSP (Qualitative Separation Program) was announced on 16 October 2012, and it does not apply to the applicant. This program applies to Soldiers with an established HQDA involuntary separation date from active duty as of 30 September 2018 or earlier; those Soldiers must have completed at least 15 years of active service and most importantly they must have been serving on active duty but denied continued service as a result of an approved QSP. The applicant was neither serving on active duty at the time this program was announced nor was she separated under the QSP. The QSP is not retroactive. 
 
6.  On 8 February 2018 (AR20160019292), the Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. The Board determined the evidence presented was insufficient and voted to deny the portion of her request that pertained to promotion, retirement, or changing her narrative reason for separation, reentry code, and separation program designator.  
 
 a.  By regulation her promotion file was reviewed under the provisions of the qualitative screening program. The Secretary of the Army by law is authorized a certain Personnel strength each year. The Secretary further determines within grade the required strength by MOS. The qualitative screening process can deny reenlistment to nonprogressive and nonproductive Soldiers. If selected in the qualitative screening process, the Soldier should receive a Department of the Army (DA) imposed bar to reenlistment. The Soldier is subject to separation within 90 days. 
 
 b.  The applicant's record is void of a DA imposed bar to reenlistment. In addition, there is no evidence the applicant was notified she was selected by the qualitative screening program. Notwithstanding the lack of documentation in her record showing, she was notified of her pending separation under the qualitative retention program, the Army must comply with DOD personnel end strength mandates. She had received a letter of reprimand in 1986 and a relief for cause NCOER in 1989 for misconduct. A review of her other NCOERs shows marginal to satisfactory performance. These documents appear to support her removal from active duty under the QMP. The medical advisor opined the applicant's conduct and duty performance during this period should not be attributed to sexual trauma or any mental health disorder. 
 
 c.  There is no provision for retiring the applicant with 17 years of active Federal service. As she was involuntarily separated, she is not eligible for voluntary retirement under a sanctuary lock-in program, temporary early retirement program, or VSIP. As 
she was not eligible for a voluntary separation, there is no regulatory reason to change her separation authority, SPD code, RE code, or narrative reason for separation on her 1993 DD Form214. Concerning her request to show she served until 
her ETS, a Soldier serves based on the needs of the Army. 
 
 d.  The Board did recommend partial relief regarding the Article 15 and grade. The Board did recommend:  
 
• voiding the DA Form 2627 (Article 15) dated 9 February 1993 

• restoring her rank to SSG/E-6 with a date of rank of 1 August 1983 

• correcting her separation order to show she separated in the rank/grade of SSG/E-6 

• correcting her DD Form 214 to show her rank as SSG, her grade as E-6, her date of rank as 1 August 1983, and authorization for separation pay 

• paying her the difference in pay for the period of her reduction from 9 February 1993 to her date of discharge 

• paying her full separation pay in the grade of E-6 (minus previous separation pay received) and providing her a financial statement confirming the payments made to her 


 
 e.  Based on the Board's decision in ABCMR Docket Number AR201600019292, a DD Form 215 (Correction to DD Form 214 was created on 5 June 2018, which amended the applicant's DD Form 214, in pertinent part, by deleting the rank/grade of SGT/E-5 and adding the rank/grade of SSG/E-6. 
 
7.  On 28 January 2019 (AR20180005788), the Board considered and denied her request for reconsideration of a portion of her previous requests; specifically, promotion to the rank/grade of sergeant first class (SFC)/E-7 and retirement in the rank of SFC.  
 
 a.  Prior to adjudicating her case, the medical advisor reviewed her records, at the time, and found that the available record does not reasonably support PTSD or other boardable behavior health condition(s) during the time of the applicant's military service. The applicant met medical retention standards for adjustment disorder with depressed mood and hysteric and passive aggressive traits, and other medical, physical, dental and/or behavioral conditions. Her medical conditions were duly considered during medical separation processing. 
 
 b.  After reviewing the application and all supporting evidence, as well as the statement of the applicant, the Board found no relief was warranted. The Board determined that there was no evidence presented by the applicant or obtained during the review of the case that showed the applicant was selected for SFC prior to separation. 
 
8. On 24 January 2022, by letter, the U.S. Army Criminal Investigation Command (USACID) advised regarding a request for a sanitized copy of information from CID that a search of the Army criminal file indexes utilizing the information provided revealed no Military Sexual Assault/Trauma records pertaining to the applicant. 
 
9.  On 28 April 2022 (AR202100125050, the Board again reconsidered the applicant’s request for consideration for promotion to SFC/E-7 by a standby advisory board, constructive credit sufficient enough to allow for an active duty retirement; or Temporary Early Retirement under the TERA program in place at time of discharge.  
 
 a.  Prior to the Board adjudicating her case, the medical advisor reviewed her military and VA records and indicate that:  
 
  (1)  The applicant’s military records DO NOT offer sufficient evidence of boardable behavioral health conditions of PTSD/MST, or other behavioral health conditions, during her time on active duty. The applicant’s military records suggest that the applicant did meet medical retention standards IAW AR 40-501 (Standards of Medical Fitness). The applicant’s behavioral health status during time in service DOES NOT indicate persistent behavioral health conditions, PTSD/MST, or other behavioral health conditions per military medical records made available for this review. At the time of her discharge from the military, she did meet medical retention 
standards. The applicant’s medical conditions regarding behavioral health symptoms, diagnoses and adverse impact on her were not adequately considered during her medical separation. It is the opinion of the Agency psychologist that a referral to IDES is not warranted at this time.  
 
  (2)  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, PTSD/MST. As there is an association between PTSD/MST and avoidant behavior, there is a nexus between applicant’s condition and her absences from formations, as well as substandard performance and judgment. Also, as there is an association between PTSD/MST and resistant, hostile attitudes toward authority figures, there is a nexus between her PTSD/MST symptoms and the disrespectful, interpersonally problematic behavior with superiors and peers she demonstrated in her unit. Chronological review of her military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during her time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD and experience MST’s in a noncombat military environment. 
 
 b.  After reviewing the application and all supporting documents, the Board unanimously determined relief was not warranted. Based upon the available documentation showing the applicant only served 14 years, 4 months and 21 days (and 
to qualify for TERA you must serve a minimum of 15 years of service), as well as evidence failing to show she was previously selected for promotion to SFC prior to her separation, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation and/or rank reflected on her DD Form 214/215. 
 
10.  MILPER Message Number 93-164, dated April 1993, Subject: Fiscal Year 1993 Early Retirement Program, prescribed the eligibility requirements and application procedures for early retirement for Regular Army enlisted Soldier. Soldiers must have, without exception, held a primary MOS and grade with the minimum number of years of active service as of 31 August 1993 or earlier. The messages did not list MOS of 71L or 97B. 
 
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. 
 
 a.  The evidence of record shows the applicant received an Article 15 (which was later thrown out), a GOMOR, and substandard evaluations, including a relief for cause NCOER. Accordingly, she was considered by DA selection board, and these documents supported her removal from active duty under the QMP. The previous medical advisor opined the applicant's conduct and duty performance during this period should not be attributed to sexual trauma or any mental health disorder. 
 
 b.  The previous ABCMR denial indicated she completed 14 years, 4 months, and 21 days of active service. However, the Board was referring to the period covered by her DD Form 214. Nevertheless, the applicant did have 2 years, 8 months, and 7 days of total prior active service. However, the reason she did not qualify for TERA is that her MOS was/were excluded from applying. To qualify, Soldiers must have, without exception, held a primary MOS and grade with the minimum number of years of active service as of 31 August 1993 or earlier. The messages did not list MOS of 71L or 97B. 
 
 c.  As for the VA rating, the applicant now has 100% service-connection. However, at the time of medical review of her case, the available documents reflected a rating of 70%. Regardless, the medical review determined her conduct and duty performance during this period should not be attributed to sexual trauma or any mental health disorder. Based on the preponderance of the evidence, the Board determined relief is not warranted.  
 
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 to amend the decision of the ABCMR set forth in Dockets Number: 
 
• AR20120007772 on 13 December 2012 

• AR20180005788 on 28 January 2019 

• AR20210012505 on 28 April 20222.   


 
  9/12/2023

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.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes the enlisted promotions and reductions function of the military personnel system. Chapter 4, Centralized Promotions (SFC, master sergeant (MSG), and sergeant major (SGM)) provides the rules and steps for managing the centralized promotion system. Selections by DA boards will be based on impartial consideration of all eligible Soldiers in the announced zone. Selections will be made by military occupational specialty. 
 
2.  Army Regulation 635-200 (Personnel separations), in effect at the time, dated 5 July 1984 with supplemental changes, set forth the basic authority for the separation of enlisted personnel. Paragraph 16-8 provided that Soldiers could be discharged prior to their expiration to term of service when budgetary or authorization limitations required a reduction in the enlisted strength. Soldiers who were within 2 years of qualifying for retirement a, the scheduled separation date would not be processed per this paragraph unless such action was directed by the Secretary of the Army. The Commander, U.S. Total Army Personnel Command (now· called the U.S. Army Human Resources Command) would implement this program by issuing separation instructions pertaining to a specific class or category of Soldiers. Soldiers designated for separation under this chapter will be discharged or released from active duty within 3 months after receipt of notification. 
 
3.  Army Regulation 601-280 (Total Army Retention Program), effective 17 October 1990, chapter 10 (Qualitative Screening Program), set forth policy and prescribed procedures for denying reenlistment under the QMP. This program was based a, the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. 
 
 a.  It was designed to: enhance the quality of the career enlisted force, selectively retain the best qualified Soldiers to 3) years of active duty, deny reenlistment to nonprogressive and nonproductive Soldiers; encourage Soldiers to maintain their eligibility for further service. 
 b.  The QMP consisted of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram. Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened U)' Department of the Army promotion selection boards. The appropriate selection boards evaluate past performances and estimate the potential of each Soldier to determine if continued service is warranted. Soldiers whose continued service is not warranted receive a Department of the Army bar to reenlistment and may require initiation of involuntary separation proceedings in accordance with Army Regulation 635-200. 
 
 c.  Soldier who are selected for a bar to reenlistment will be informed-individual memorandum. The Soldier should receive copies of the documents presented to the board. The notification memorandum should be processed through the chain of command to the Soldier with the commander in the rank to lieutenant colonel giving him or her the memorandum. If the Soldier is counseled, record the counseling on a DA Form 4856-R (General Counseling Form).  
 
 d.  Commander's will initiate separation proceedings per Army Regulation 635-200 no later than 60 days following the date the Soldier is notified of the bar unless the Soldier elects to retire, appeals or requests voluntary discharge.  
 
4.  MILPER Message Number 93-164, dated April 1993, Subject: Fiscal Year 1993 Early Retirement Program, prescribed the eligibility requirements and application procedures for early retirement for Regular Army enlisted Soldier. The message stated:  
 
 a.  Early retirement was not an entitlement and would only be offered to Soldiers who met the strict eligibility requirements outlined in the message or in supplemental updates. Commanders must have ensured that applicants met the eligibility criteria. The approval authority for all early retirement application was the U.S. Total Army 
Personnel Command (PERSCOM). 
 
 b.  Individuals who had already separated under provisions of any other voluntary or involuntary separation program were ·not eligible for early retirement.  
 
 c.  Enlisted Soldiers must have been on active duty in the Regular Army and met all eligibility requirements for retirement for length of service for a 20-year retirement as prescribed in Army Regulation 635-200, chapter 12, except where modified by that message. 
 
 d.  Soldiers must have, without exception, held a primary MOS and grade with the minimum number of years of active service as of 31 August 1993 or earlier. The messages did not list the applicant's MOS of 71L or 97B. 
 
 
5.  Effective 1 April 2012, the Army implemented the enlisted Qualitative Service Program (QSP) to identify noncommissioned officers (NCO) for involuntary early separation from active duty. The QSP consists of a series of centralized enlisted selection board processes designed to support the Army Leader Development Strategy and to retain the highest quality NCOs who display the greatest potential for continued service while satisfying mandated force structure requirement. 
 
6.  MILPER Message Number 12-329, issued on 16 October 2012, stated:  
 
 a. TERA was applicable to Soldiers with established Headquarters, Department of the Army (HQDA), involuntary separation date from active duty of 30 September 2018 or earlier, who had completed at least 15 years of active service. Since TERA is not an entitlement, eligible members who desired early retirement must apply for consideration, and approval was not assured. 
 
 b.  NCOs denied continued service as a result of an approved QSP Centralized Selection Board who are serving on active duty and completed 15 but less than 20 years of active service as of the established involuntary separation date. 
 
 c.  The message does not provide provisions for extending the early retirement benefit to Soldier who were previously separated under the QRP.  
 
//NOTHING FOLLOWS//