IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20220003326 APPLICANT REQUESTS: an upgrade of her uncharacterized discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 20 December 2021 * Self-authored Statement, 20 December 2021 * Hospital Discharge Instructions, 22 July 2007 * Hospital Emergency Record, 22 July 2007 * Medical Information, Bureau of Unemployment Commission, Department of Labor, State of, 28 July 2008 * (Company) Psychiatric Services, 29 November 2018 * (Company) Hospital Discharge Instructions, 2019 * (Company) Psychiatric Services, 12 August 2020 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, in effect: a. In July 1998, she was attacked and raped. She had to keep her situation a secret. b. In 1999, she joined the military to give her son a better life. The anxiety and trauma she suffered was intense. She was worried about leaving her son behind at home. She was scared to tell anyone her situation and this affected her performance. c. As an excuse, she acted as if she was not physically fit. In reality, she now knows she had post-traumatic stress disorder (PTSD). She saw doctors and therapists for years after her separation. The gas chamber training triggered her PTSD because it made her feel like someone was holding her face down as when she was attacked. d. She was treated at the VA in 2006 but in 2007, her benefits were stopped because she did not qualify. She is requesting VA benefits to help her. It took years for her to admit what happened. The person who hurt her went to prison and was labeled a sex offender. 3. The applicant provides copies of her: a. Hospital discharge instructions from (Company) hospital, 22 July 2007 showing she was treated for depression. b. Emergency room record, from (Company) hospital, 22 July 2007, showing her course of treatment. c. A State of Bureau of Unemployment Compensation application in which she listed bipolar disorder and PTSD as a disability. d. Psychologist care records and notes from September through November 2018. e. Discharge instructions from (Company) hospital, 2019, showing diagnosis of depression and anxiety. f. A letter from Dr. ) behavior health, 12 August 2020, showing psychiatric care for PTSD and major depressive disorder. 4. A review of the applicant's service record shows: a. On 14 October 1999, she underwent a medical examination in connection with her enlistment in the Army. She indicated, in part, no neurologic or psychiatric conditions. The examining physician noted she was qualified for enlistment. b. On 22 November 1999, she enlisted in the Regular Army beginning at grade/pay grade private first class/E-3 for a period of 4 years at age 21. c. On 14 January 2000, she was assigned to Company B, 3d Battalion, 13th Infantry Regiment, Fort Jackson for Basic Combat Training (BCT). d. On 14 January 2000, she was counseled (DA Form 4856) and acknowledged counseling for BCT graduation requirements to successfully complete BCT. e. On 26 January 2000, she provided a voluntary statement in writing: * She enlisted to give her son a better life * She was sent to remedial fitness training for inability to complete the physical fitness test pushups and the run and for upper-body strength building * She fell out on runs and could not handle road marches or the exercise * She was unable to keep up with anyone though she was trying her best * She elected not to seek counsel, to attend physical training remedial program or to attend Newstart f. She was counseled (DA Form 4856) and acknowledged with her signature: * On 27 January 2000, for missing too much training and for not wanting to continue training, for being able to train but not wanting to train, and for no commitment to the Army * On 30 January 2000, for her refusal to train during NBC II and failure to complete gas chamber training, and that her refusal to complete such mandatory training would result in her Drill Instructor's recommendation of her separation from the Army under Chapter 11 * On 7 February 2000, for failure to adapt be refusing to train on two occasions * On 7 February 2000, for failure to perform mandatory tasks, for failing to complete the Army Physical Fitness Test, failing to complete the Dawson Tower, and failing to complete NBC II g. On 7 February 2000, her Company Commander, Company B, 3d Battalion, 13th Infantry Regiment, notified her of his intent to initiate separation actions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, for entry level performance and conduct, and notified her of her rights. She understood she had the right to consult with consulting counsel or civilian counsel at her own expense, she could submit statements in her own behalf, she could request a separation physical, and she had a right to obtain copies of the documents supporting the proposed separation that would be sent to the separation authority. h. On 7 February 2000, she acknowledged her rights and she elected not consult with consulting counsel, she elected to make a statement in her own behalf, and she elected not to request copies of the documents supporting the proposed separation. i. On 7 February 2000, her company commander recommended her discharge under the provisions of Army Regulation 635-200, Chapter 11 for failure to adapt to the military environment. He noted she received repeated counseling and re-training but did not find it feasible or appropriate to accomplish a disposition other than separation from the U.S. Army. j. On 7 February 2000, the separation authority approved her discharge under provisions of Army Regulation 635-200, Chapter 11, with an uncharacterized discharge. k. On 15 February 2000, she was discharged. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was separated under provisions of Army Regulation 635-200, Chapter 11, by reason of entry-level performance and conduct with service as uncharacterized, with a separation code of JGA. She completed 2 months and 28 days of net active service. She was not awarded a military occupational specialty and she was awarded not medals and decorations. Her grade/pay grade was shown as private first class/E-3. 5. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting an upgrade of her uncharacterized discharge to an honorable. She contends her trauma history impacted her performance during BCT. a. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory February are the following: 1) The applicant enlisted into the Regular Army 22 November 1999; 2) She received multiple negative performance related counseling during BCT; 3) She was discharged on 15 February 2000 under provisions of AR 635-200, Chapter 11, entry level performance and conduct. b. Military medical documentation reviewed includes the Standard Form 88 (Report of Medical Examination) dated 14 October 1999, noting in part the applicant indicating no history of neurologic or psychiatric conditions, and the physician noting her qualified for enlistment. A review of JLV showed the applicant received medical treatment, primarily for cardiac related issues, at the VA from 8 August 2006 until 31 January 2007. JLV is void of any BH related treatment history. The applicant provided hardcopy civilian medical records showing she began receiving BH treatment for Depression in 2007 subsequent reporting the with suicidal ideation and depressed mood. During intake she shared that she believed she was molested by her father during childhood. A Maine Department of Labor Document dated 30 July 2008 and signed by the applicant’s treating physician shows she was diagnosed with bipolar disorder and PTSD, and a records from and shows the applicant received care beginning April 2018 through 2020, with diagnoses of PTSD, Obsessive Compulsive Disorder, Panic Disorder, and Depressive Disorder. c. The applicant contends she was raped one year prior to entering service, and at least one record shows the applicant endorsed believing she experienced childhood sexual abuse, perpetrated by her father. She further contends the rape, stress associated with being away from her son, and a gas chamber incident that reminded her of the rape affected her performance. Records show the applicant was counseled on requirements to complete BCT and elected not to complete remedial training. She was further counseled for failure to perform/complete several mandatory trainings, resulting in her eventual separation. d. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant had experiences that mitigates her misconduct. The applicant contends a history of rape that occurred the year prior to enlisting, a triggering experience (i.e., wearing a gas mask) during basic training, and stress associated with being away from her child impacted her ability to perform. e. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) Yes. The applicant contends a history of rape and at least one record suggest childhood sexual assault. (2) Did the condition exist or experience occur during military service? (a) Yes. The rape and childhood sexual abuse occurred prior to service, however, the trigger event (having to wear a gas mask) and stress associated with being away from her child occurred reportedly occurred during BCT. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Partial. There is a nexus between trauma-related experience and lack of motivation, focus, and performance. Adjustment related issues associated with being away from loved ones can also impact performance and motivation. However, there are mandatory minimal requirements to complete BCT. The applicant was availed the opportunity for counseling and remedial training to improve her performance but declined the offers, electing instead a Chapter 11 discharge. 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 applicant's claim regarding being raped prior to entering military service and the review and conclusions of the Army Review Boards Agency Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding her misconduct being partially mitigated by a trauma-related experience. The Board noted, however, that the record clearly shows she was in an entry-level status at the time of her discharge and an uncharacterized discharge is neither positive nor negative—it is a neutral discharge that simply means a Soldier has not served long enough to determine the character of his or her service. Based on a preponderance of evidence, the Board determined 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 :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier's service generally .has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 11 provides guidance for the separation of personnel because of unsatisfactory performance, or conduct (or both) while in an entry level status. Chapter 11-3 applies to Soldiers who were voluntarily enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve are in an entry level status and, before the date of the initiation of separation actions, have completed no more than 180 days of creditable continuous active duty or initial active duty training; and have demonstrated they cannot or will not adapt socially or emotionally to military life. c. Entry-Level status. Service will be uncharacterized for separation under the provisions of chapter 11. d. For ARNG and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training. e. Entry-level status is defined as: (1) For Regular Army soldiers, entry-level status- is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. 2) For ARNGUS and USAR soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For soldiers ordered to IADT for the split or alternate training option it terminates 90 days after beginning Phase II advanced individual training (AIT). (Soldiers completing Phase I Basic Training or BCT remain in entry-level status until 90 days after beginning Phase II. 3. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full time training duty. The separation program designator JGA corresponded to the narrative reason entry-level performance and conduct and the authority Army Regulation 635-200, chapter 11, and corresponded to an entry level type separation. 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. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 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 based on 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// ABCMR Record of Proceedings (cont) AR20220003326 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1