IN THE CASE OF: 

		BOARD DATE: 24 January 2023

		DOCKET NUMBER: AR20220003675


APPLICANT REQUESTS: change her uncharacterized character of service to a medical 
discharge.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Army Discharge Review Board)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	DD Form 93 (Record of Emergency Data)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, United 
States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident 
Thereto). 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 the Army discharged her because she tested positive for 
HIV (Human Immunodeficiency Virus), but she maintains, "I was not positive when 
I entered." 

	a. The applicant further states she joined the Army on a 4-year enlistment contract, 
and "my physical taken showed me as HIV – by the time I shipped out to basic, I was 
HIV."

	b. The applicant continues, "While in Basic training I tested positive for HIV1 and 
was told that I would have to be sent home due to this reason. This was 2 weeks in, but 
I had to remain there to complete training. I stayed until the day before graduation."

	c. “I was told my discharge would be honorable + medical. I went to Fort Jackson for 
my training. While I was there, an enlisted private male physical(ly) assaulted me & tried 
to rape me. He was arrested, but I never felt safe until I left that base." 

3.  A review of the applicant's service records show:
	a. On 21 September 2001, the applicant underwent an enlistment physical; her 
DD Form 2808 (Report of Medical Examination) indicates, at the time, her HIV test 
results were negative, and the examining physician declared her qualified for service in 
the Army.

	b.  On 8 July 2003 (more than 21 months after her entry physical), the applicant 
enlisted into the Regular Army for 4 years; orders transferred her to Fort Jackson, 
SC for BCT, and she arrived at her BCT unit, on or about 18 July 2003. 

	c. On or about 18 August 2003, an Army civilian doctor completed an Optional Form 
275 (Medical Record Report), in which he stated, "24 year old Soldier with positive 
human immunodeficiency virus test. Soldier was seen two weeks ago and had a 
negative GC and negative Chlamydia test." Under subjective and objective findings, the 
doctor wrote, "Soldier with positive HIV Test."

	d. On 18 August 2003, a medical evaluation board (MEB) determined the applicant 
failed medical retention standards because she was "Blood Donor Ineligible." The MEB 
cited paragraph 3-7h (Blood and Blood-Forming Tissue Diseases – HIV), Army 
Regulation (AR) 40-501 (Standards of Medical Fitness) failed medical retention 
standards and indicated her condition had existed prior to service (EPTS) and was not 
permanently aggravated by service. The board recommended the applicant's 
separation, under the provisions of AR 635-40 (Physical Evaluation for Retention, 
Retirement, or Separation), chapter 5 (Separation for Non-Service Aggravated, EPTS 
Conditions upon Soldier's Waiver of PEB (physical evaluation board) Evaluation); 
on 18 August 2003, the applicant concurred with the MEB's findings and 
recommendations.

	e. On 18 August 2003, the applicant requested discharge for physical disability 
based on the MEB's findings and recommendations. The applicant affirmed she had 
been fully informed and understood she was entitled to the same consideration and 
processing as any other Soldier separated for disability; however, she elected not to 
exercise her right. The applicant further affirmed she realized, if the separation authority 
approved her request, she would be separated due to having an EPTS condition and 
would receive a discharge "in keeping with the character of my service as decided by 
the officer designated to effect my separation." 

	f. On 19 August 2003, the separation authority approved the applicant's separation; 
without declaring a character of service for the applicant, the separation authority 
directed, "[Applicant] will be separated from service IAW (in accordance with) chapter 5, 
AR 635-40." 

	g.  On 20 August 2003, orders discharged the applicant with an uncharacterized 
character of service; her DD Form 214 shows she was discharged under the provisions 
of AR 635-40, chapter 5, due to disability that existed prior to service. She received an 
uncharacterized discharge. She completed 1 month and 15 days of her 4-year 
enlistment contract.

4.  AR 40-501, in effect at the time, prescribed policies and procedures for identifying 
and referring for Disability Evaluation System (DES) processing those Soldiers who 
failed the medical retention standards.

	a. Chapter 3 (Medical Fitness Standards for Retention and Separation, including 
Retirement) listed the various disqualifying medical conditions and/or physical defects 
requiring DES referral. 

	b. Paragraph 3-7h stated that Soldiers should be referred to an MEB when "HIV 
confirmed antibody positivity, with the presence of progressive clinical illness or 
immunological deficiency. For regular Army soldiers and Reserve Component Soldiers 
on active duty for more than 30 days, an MEB must be accomplished and, if 
appropriate, the Soldier must be referred to a PEB under AR 635–40."

5.  AR 635-40, in effect at the time, prescribed policies and procedures for the Army's 
implementation of the Disability Evaluation System (DES). 

	a.  Federal law established the DES, and its stated objectives were to maintain 
effective and fit military organizations with maximum use of available manpower; 
provide benefits for eligible Soldiers whose service were terminated due to a service-
connected disability; and to provide prompt disability processing while ensuring the 
Soldiers' rights and the interests of both the government and Soldiers' were protected.  

	b. Chapter 5 outlined procedures for the separation of Soldiers who had been on 
active duty for more than 30 days, had been identified with non-service aggravated 
EPTS conditions, and had waived physical evaluation board (PEB) evaluation. 

		(1)  Eligibility criteria for this provision required the Soldier to meet the following:

*	Eligible for referral into the DES
*	Failed medical retention standards, as determined by an MEB
*	Had a disqualifying defect or condition that existed prior to entry on current 
period of service and was not aggravated by that service
*	Was mentally competent
*	Knowledge of information about his or her medical conditions would not be 
harmful to the Soldier's well-being
*	Further hospitalization or institutional care was not required
*	After being advised of the right to a full and fair hearing, the Soldier 
desired to waive PEB action
*	Soldier had been advised that a PEB evaluation was required for the 
receipt of Army benefits, but waiver of the PEB would not prevent the 
Soldier from applying for Department of Veterans Affairs benefits 

		(2)  The regulation stated separation authorities were to execute the Soldier's 
separation expeditiously and issue an honorable or general under honorable conditions 
discharge; however, Soldiers in an entry-level status were to receive an uncharacterized 
character of service.

6.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, 
included criteria for determining characters of service. Based on a Department of 
Defense change in policy and implemented by the Army in October 1982, Soldiers 
separated while in an entry-level status received uncharacterized characters of service; 
for Regular Army Soldiers, entry-level status began upon their entry on active duty and 
continued until they had either completed 180 days of continuous active duty service.

7.  MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the 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:  

    a.  The applicant is applying to the ABCMR requesting, in essence, a referral to the 
Disability Evaluation System.  She states:

“I was discharged because I tested HIV positive.  I was not positive when I 
entered.  I want a medical discharge.”

    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  Her DD 214 shows he entered the regular Army on 8 July 
2003 and received an uncharacterized discharge on 22 August 2003 under the 
provisions in Chapter 5 of AR 635-40, Physical Evaluation for Retention, Retirement, or 
Separation (17 October 1990): Separation for Non-Service Aggravated, EPTS {existed 
prior to service} Conditions upon Soldier's Waiver of PEB Evaluation.  The military 
separation code KFN denotes “Disability, Existed Prior to Service, Med Board.” 

    c.  Chapter 5 of AR 635-40 allows a Soldier to waive a physical evaluation board 
(PEB) for a medical condition which fails medical retention standards but would be non-
compensable because it existed prior to service and was not permanently aggravated 
by service.  A medical evaluation board (MEB) is completed to validate these criteria 
have been met and separation under chapter 5 is applicable.  The Soldier is advised 
that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the 
PEB will not prevent applying for VA benefits.

    d.  The applicant’s 21 September 2001 pre-entrance Report of Medical History and 
Report of Medical Examination show she was in good health, without significant medical 
history or conditions.  Her HIV test at that time was negative.

    e.  The applicant’s undated Medical Record Report states she had had undergone an 
evaluation for sexually transmitted diseases on 29 July 2003 and that her HIV test was 
positive. 

    f.  There were 22 months between her entrance physical with its negative HIV test 
and the date she entered the Army; the positive HIV test was done within three weeks 
of her entering the Army; seroconversion, the period during which the body starts 
producing detectable levels of HIV antibodies, usually occurs several weeks after 
initially contracting the virus; and no in-service mechanism for her to have contracted 
the virus immedicably after entering the service was identified.

    g.  She was counseled on this positive test result and that it had been determined to 
have existed prior to her service.   She requested separation for the Army and a waiver 
of a physical evaluation board on 18 August 2003:

		(1)  I request discharge for physical disability based upon the findings and 
recommendations of a medical evaluation board (MEBD). The MEBD considers me 
unqualified for retention in the military service because of physical disability that was 
found to have existed prior to my entry into active service (EPTS).  The MEBD found the 
disability neither incident to nor aggravated by my military service.

		(2)  I have been fully informed and understand that I am entitled to the same 
consideration and processing as any other soldier of the Army separated for physical 
disability.  I understand this includes consideration of my case by a Physical Evaluation 
Board (PEB).  However, I elect not to exercise this right.  I also understand the 
Department of Veterans Affairs (VA) will determine entitlement to VA benefits.

		(3)  If this application is approved, I understand that I will be separated by reason 
of EPTS physical disability. I also understand that I will receive a discharge in keeping 
with the character of my service as decided by the officer designated to affect my 
separation.”

    h.  On 18 August 2003, she concurred with the medical evaluation boards’ conclusion 
that she should be separated from the Army for this pre-existing condition.  

    i.  An uncharacterized discharge is given to individuals who separate prior to 
completing 180 days of military service, or when the discharge action was initiated prior 
to 180 days of service.  This type of discharge does not attempt to characterize service 
as good or bad.  Through no fault of his own, he simply had a medical condition which 
was, unfortunately, not within either enlistment or retention standards.  

    j.  It is the opinion of the Agency Medical Advisor that referral of her case to the DES 
is not warranted. 

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 applicant was separated on 20 August 2003, under AR 635-40, chapter 5, 
due to disability that existed prior to service. She received an uncharacterized 
discharge. She completed 1 month and 15 days of active service. The Board reviewed 
and agreed with the medical advisory finding that there were 22 months between her 
entrance physical with its negative HIV test and the date she entered the Army; the 
positive HIV test was done within three weeks of her entering the Army; seroconversion, 
the period during which the body starts producing detectable levels of HIV antibodies, 
usually occurs several weeks after initially contracting the virus; and no in-service 
mechanism for her to have contracted the virus immedicably after entering the service 
was identified. She was counseled on this positive test result and that it had been 
determined to have existed prior to her service. She requested separation for the Army 
and a waiver of a physical evaluation board on 18 August 2003:

	b.  An uncharacterized discharge is given to individuals who separate prior to 
completing 180 days of military service, or when the discharge action was initiated prior 
to 180 days of service. The Board determined that referral to the military’s disability 
evaluation system is not warranted in this case. 

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, 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.  Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) 
provides the Secretary of the Army shall ensure that an applicant seeking corrective 
action by ARBA is provided a copy of all correspondence and communications, 
including summaries of verbal communications, with any agencies or persons external 
to agency or board, or a member of the staff of the agency or Board, that directly 
pertains to or has material effect on the applicant's case, except as authorized by 
statute.

3.  AR 40-501, in effect at the time, prescribed policies and procedures for identifying 
and referring for DES processing those Soldiers who failed the medical retention 
standards.

	a. Chapter 3 listed the various disqualifying medical conditions and/or physical 
defects requiring DES referral. 

	b. Paragraph 3-7h stated Soldiers should be referred to an MEB when "HIV 
confirmed antibody positivity, with the presence of progressive clinical illness or 
immunological deficiency. For regular Army soldiers and Reserve Component Soldiers 
on active duty for more than 30 days, an MEB must be accomplished and, if 
appropriate, the Soldier must be referred to a PEB under AR 635–40."

4.  AR 635-40, in effect at the time, prescribed policies and procedures for the Army's 
implementation of the Disability Evaluation System (DES). 

	a.  Federal law established the DES, and its stated objectives were to maintain 
effective and fit military organizations with maximum use of available manpower; 
provide benefits for eligible Soldiers whose service were terminated due to a service-
connected disability; and to provide prompt disability processing while ensuring the 
Soldiers' rights and the interests of both the government and Soldiers' were protected.  

	b. Chapter 5 outlined procedures for the separation of Soldiers who had been on 
active duty for more than 30 days, had been identified with non-service aggravated 
EPTS conditions, and had waived physical evaluation board (PEB) evaluation. 

		(1)  Eligibility criteria for this provision required the Soldier meet the following:
*	Eligible for referral into the DES
*	Failed medical retention standards, as determined by an MEB
*	Disqualifying defect or condition existed prior to entry on current period of 
service and was not aggravated by that service
*	Mentally competent
*	Knowledge of information about his or her medical conditions would not be 
harmful to the Soldier's well-being
*	Further hospitalization or institutional care was not required
*	After being advised of the right to a full and fair hearing, the Soldier 
desired to waive PEB action
*	Soldier had been advised that a PEB evaluation was required for the 
receipt of Army benefits, but waiver of the PEB would not prevent the 
Soldier from applying for Department of Veterans Affairs benefits 
		(2)  The regulation stated separation authorities were to execute the Soldier's 
separation expeditiously and issue an honorable or general under honorable conditions 
discharge; Soldiers in an entry-level status received an uncharacterized character of 
service.

5.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, 
identified criteria for determining characters of service. Based on a Department of 
Defense change in policy and implemented by the Army in October 1982, Soldiers 
separated while in an entry-level status received uncharacterized characters of service; 
for Regular Army Soldiers, entry-level status began upon their entry on active duty and 
continued until they had either completed 180 days of continuous active duty service.

6.  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 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 misconduct that led to 
the discharge.  

7.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency 
determinations. Clemency generally refers to relief specifically granted from a criminal 
sentence. BCM/NRs may grant clemency regardless of the type of court-martial. 
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice. 

	a. This guidance does not mandate relief, but rather provides standards and 
principles to guide Boards in application of their equitable relief authority. In determining 
whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs 
shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy 
changes, relative severity of misconduct, mental and behavioral health conditions, 
official governmental acknowledgement that a relevant error or injustice was committed, 
and uniformity of punishment. 

	b. Changes to the narrative reason for discharge and/or an upgraded character of 
service granted solely on equity, injustice, or clemency grounds normally should not 
result in separation pay, retroactive promotions, and payment of past medical expenses 
or similar benefits that might have been received if the original discharge had been for 
the revised reason or had the upgraded service characterization.  

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220003675


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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