IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220006809 APPLICANT REQUESTS: Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 28 April 1995, to show she was honorably discharged, and a personal appearance via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with applicant's partial self-authored statement dated 11 February 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 28 April 1995 * Medical Doctor and Licensed Professional Counselor Statement's, both dated 5 February 2021 * Two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim), dated 28 January and 8 February 2021 as letters of support from her husband and daughter * VA Medical Documents (20 pages) * Civilian Medical Documents (54 pages) * VA Ratings Decision Letters, dated 8 December 2021 and 10 February 2022, and a VA Benefits Letter, dated 11 February 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. She would like her discharge upgraded from uncharacterized to honorable, because what happened to her while serving was unjust. She has waited so long to ask for this as the trauma of post-traumatic stress disorder (PTSD) from the military sexual trauma (MST) she suffered has gone on for many years. This has affected her life, socially and mentally. She learned through counseling for three years that she needed to deal with the past. b. After beginning basic training, she started having severe pains in her right side and was placed on light duty. As she sought medical attention for her pains one of the drill sergeants became negative and abusive referring to her as a slug and oxygen thief, and saying she was wasting everyone's time. He made her march behind the platoon and called her piggy as he made pig sounds. She was taken to the dining facility alone on multiple occasions and made to eat with her hands behind her back. c. He told her she was using the hospital as a malingerer and eventually made her move from the third floor to the first floor by herself. The room had four beds, but she was made to sleep in a bunk by the door, front and center. There was no door to the room, and people would pass by at all hours of the night. Drill sergeants would bang on the wall and yell at her to get to attention just to go back to bed. On several occasions she woke up with a drill sergeant standing over her. d. One day she was showering, and her drill sergeant walked in while she was washing her hair and she did not hear him enter the shower. While she stood there naked, he made her stand at attention and do pushups naked in the shower. After he left, she grabbed her clothes, got dressed and showered in her bra and underwear from that point forward. e. She complained and asked to speak to the chaplain. The chaplain spoke to the company commander, a female lieutenant. The commander showed no compassion, accused the applicant of being disloyal and breaching chain of command, and told her she could be sent to Fort Leavenworth for talking to the chaplain. She felt singled out and chose to proceed with the medical board as soon as possible. She intended to serve honorably but was given a reason to leave via the medical board and did not contest the Board's findings. Even in this statement she did not mention the drill sergeant's name out of fear of retaliation. 3. On his DD Form 149, the applicant notes PTSD and sexual assault/harassment are related to her request, as contributing and mitigating factors in the circumstances that resulted in her separation. 4. The applicant’s service records are missing pertinent information; however, the available records show: a. On 15 March 1995, the applicant enlisted in the Regular Army for a 4-year service obligation. She reported to Fort Jackson, South Carolina, on 24 March 1995 for basic training. b. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing. However, her DD Form 214 shows she was discharged on 28 April 1995, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 5, with a narrative reason for separation of "DISABILITY, EXISTED PRIOR TO SERVICE (EPTS) - MEDICAL BOARD" (Separation Code KFN, Reentry Code 3). She was credited with completing 1 month and 14 days of net active service this period and was awarded the National Defense Service Medal. 5. Army Regulation 635-40, in effect at the time, prescribed policies and procedures for the evaluation and final disposition of Soldiers determined to be unfit due to physical disability. a. Chapter 5 (Separation for Non-Service Aggravated, EPTS Conditions upon Soldier's Waiver of Physical Evaluation Board (PEB) Evaluation). Under this chapter, Soldiers could waive their right to PEB evaluation and elect separation. To qualify for this separation, the Soldier must have been on active duty for more than 30 days and to meet the following criteria: * Soldier was eligible for referral into the disability system * Soldier did not meet medical retention standards, as determined by an MEB * the disqualifying defect or condition existed prior to entry on the Soldier's current period of active duty and had not been aggravated by such duty * further hospitalization or institutional care was not required * after being advised of the right to a full and fair hearing, the Soldier still desired to waive PEB action * Soldier was advised that a PEB evaluation was needed for receipt of Army disability benefits, but waiver of the PEB did not prevent the Soldier from applying for VA benefits b. When the Soldier was in an entry-level status, Army policy required the issuance of an uncharacterized character of service. 6. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active-duty service. The evidence of record shows the applicant was in an entry-level status at the time of her separation. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It simply means the Soldier was not in the Army long enough for his or her character of service to be rated as honorable or otherwise. 7. The applicant provides a partial statement as detailed above. Her medical doctor and counselor provide statements that she has been under their care for anxiety, depression, migraine headaches, and other symptoms related to her military derived PTSD associated with MST for years. A letter from her brother describing her behavior before and after service. Two VA Forms 21-4138 from her daughter and husband describing her personality and demeanor dealing with depression and anxiety. She includes 20 pages of VA medical documents, 54 pages of civilian medical documents, and her VA rating decision letters and documents listed above showing she has a 50 percent disability rating. 8. Published guidance to the Boards for Correction of Military/Naval Records (BCM/NR) clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 9. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting correction of her DD Form 214, for the period ending 28 April 1995, to reflect she was honorably discharged. She contends her separation was associated with PTSD secondary to MST. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 15 March 1995; 2) The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing. However, her DD Form 214 shows she was discharged on 28 April 1995, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 5, with a narrative reason for separation of "DISABILITY, EXISTED PRIOR TO SERVICE (EPTS) - MEDICAL BOARD." c. A review of the electronic military medical record (AHLTA) was not conducted as the system was not in use during the applicant’s time in service. A review of the VA electronic medical record showed the applicant 50 percent service-connected (SC), with a 30 percent SC for PTSD secondary to MST. A VA C&P Examination dated 9 March 2021, showed the applicant shared that during basic training she experienced significant stomach pain that required numerous medical visits. She reported that her DS team believed she was malingering and as a consequence, she was reportedly moved from the female floor and placed on the first floor with Cadre. She reported that although she was in her own room, Cadre would often enter her room at night and harass her, awaken her for no reason, and sometimes just stand over her. She recounted instances of being brought to the front of formations and made to put her fingers in her ears and told to “oink like a pig”. She also recalled that on at least one occasion being forced by a DS to eat her meal with her hands behind her back as the DS made “oinking” sounds and calling her a pig. d. The applicant described the MTS as having occurred when she was showering alone in the female bathroom when her DS entered. According to the applicant, it was toward the end of the day, and while showering the DS called her name, surprising her as her back was turned and eyes closed, “not paying attention”. She reported being startled by his voice, yelling her name and telling her to stand at attention. According to the applicant, the DS instructed her to do pushups in the nude while he watched. She stated “it felt like a really long time” but believes the whole event happened within 10 minutes. She reported feeling “terrified” and stated, “I was afraid that I was going to be raped”. The harassment reportedly continued for at least 5-6 more times. The applicant reportedly sought counsel from the Chaplain, who broke confidence and inform the applicant’s command of her visit. The applicant reported she wanted to push through and remain in the military, however, her physician recommended she leave, reportedly stating ““Little lady if you don't say that this (referring to abdominal pain) happened before the military you will never advance." She broke down. The applicant was told by the MD that other doctors would talk to her. She reportedly informed the other doctors that the onset of her pain was 5-6 years prior and when she began regular menstruation. She was subsequently discharged. e. The applicant appears to have first engaged the VA for BH related care at the Rosberg OR VA on 9 July 2020 seeking a consult for treatment related to MST. She was agreeable to a teleconference and was scheduled for an MST assessment. During the MST assessment, on 7 July 2020, the applicant communicated being “terrified” to talk about the MST incident and shared that she was in the process of working with a VSO to file for service-connected disability. The applicant complained of current issues with anxiety, nightmares, isolation, avoidance, and significant trust issues. She briefly shared that during basic training she experienced significant stomach pain, however, her DS team believed she was malingering. As a consequence, she was reportedly moved from the female floor and placed on the first floor with Cadre. She reported that although she had her own room, Cadre would often enter her room at night and harass her, knock on the wall to waken her for no reason, and sometimes just stand over her. She reportedly tried to “just go on and push away what was happening” to her. The applicant implied there was more to discuss related to the MST but said she was terrified to discuss it. The provider recommended the applicant be referred for therapy with a female psychologist for trauma treatment and the applicant was agreeable. The diagnosis of record was PTSD, Chronic. A note date 22 July 2020 stated that the applicant reported for intake at the PTSD Clinic Team, but time did not allow completion of the intake. The applicant was scheduled to return on 27 July 2020. On 27 July 2020 the applicant returned and during the encounter she reported nervousness, anxiety, and isolation, and stated she doesn’t leave home very often. She also reported having decided to seek help because she was in the process of applying for service-connection and having to write about the trauma brought up difficult memories. She detailed a specific experience whereby she was showering alone in the female bathroom when her DS entered the shower. She stated that it was the end of the day and she had free time to go shower. She reported having her back to the door, eyes closed, and not paying attention while washing her hair, then being startled when the DS yelled her name and instructed her to stand at attention. According to the applicant, the DS instructed her to do pushups in the nude while he watched. She stated “it felt like a really long time” but believes the whole event happened within 10 minutes. She reported feeling “terrified” and stated, “I was afraid that I was going to be raped”. The harassment reportedly continued for at least 5-6 more times. She reportedly began showering with her clothes on after this experience and stated she had “constant fear of seeing him”. This experience reportedly caused many difficulties for applicant socially and interpersonally. For example, she reported that in 22 years of marriage, she has avoided being seen fully unclothed by her husband, because it feels too vulnerable and “terrifying”. The applicant was provisionally diagnosed with PTSD and scheduled for another session (30 July 2020) to complete the Clinical Assessment for PTSD Survey 5 (CAPS-5), however, the applicant did not return for the follow-up session. A JLV entry dated 4 August 2020, entered by a member of the PTSD Care Team, showed the provider spoke with the applicant and was informed by the applicant the she decided to hold off on treatment for the time being, citing increased work demands and a desire to prioritize her filing for service- connected disability, with her free time. She stated she’d continue working with her counselor in the private sector and thanked the provider for the call. f. The applicant included in her packet a letter from a provider from the Linn County Department of Health, dated 5 February 2021, which affirmed the applicant was in treatment for PTSD with the provider, from July 2020 to December 2020, to address symptoms secondary to reported MST. The packet also included a letter from a provider from Samaritan Family Medicine at Geary Street, dated 5 February 2021, in which the provider affirmed currently providing treatment for anxiety, depression, and PTSD associated with MST since 2005. g. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience that mitigated her separation. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 30 percent SC for PTSD secondary to MST. (2) Did the condition exist or experience occur during military service? Yes. The experience reportedly occurred during initial entry training (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant contends a history of abuse, harassment, and MST during her time in initial entry training, reportedly perpetrated by her DS. Experiences reportedly included being made to PT in the shower, while nude; being made to stand in front of the formation with her fingers in her ears and instructed to “oink like a pig”; and being forced to eat her meal, on at least one occasion, with her hands behind her back while her DS made “oinking” sounds. The applicant reported harassment and mistreatment initial occurred after seeking medical treatment for stomach pain. According to the applicant, her DS team believed she was malingering. The applicant contends she had a desire to remain in the military and push through but was instructed by her physician to report her stomach pains existed prior to service. According to the applicant, due to the continued harassment and fear of having to endure more harassment if recycled, she agreed to administrative separation. While the specific facts surrounding the applicant’s separation are not available for review, that which is available suggest the applicant experienced abuse, harassment, and MST, that in part informed her decision to agree with a provider to convey to other providers that her pain was from a condition that existed prior to service. It is not unreasonable to speculated that but for the harassment, abuse, and MST, the applicant would have received proper medical care to address her stomach pain, been recycled, if necessary, completed initial entry training, and gone on to her duty station. Instead, it appears the applicant elected to separate in order to avoid the possibility of continued traumatization or re-traumatization. Given there is a clear association between PTSD/MST and a desire to avoid continued trauma and/or traumatic reminders, there is nexus between the applicant’s diagnosis of PTSD and decisions related to administrative separation. As such, it is the recommendation of this advisor the Board considers upgrade to HD/Secretarial Authority. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. a. The applicant was separated due to a disability that existed prior to service, with an uncharacterized discharge, after completing 1 month and 14 days of active service. She did not complete initial entry training and was not awarded an MOS. The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry- level status. As such, his DD Form 214 properly shows his service as uncharacterized. b. The Board reviewed and agreed with the medical advisor’s finding that it is not unreasonable to speculate that except for the alleged harassment, abuse, and MST, the applicant would have received proper care to address her stomach pain, been recycled, if necessary, completed initial entry training, and gone on to her duty station. Instead, it appears the applicant elected to separate in order to avoid the possibility of continued traumatization or re-traumatization. Given there is a clear association between PTSD/MST and a desire to avoid continued trauma and/or traumatic reminders, there is nexus between her PTSD diagnosis and decisions related to administrative separation. The Board determined an upgrade of her characterization of service is appropriate. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 28 April 1995, showing: * Character of Service: Honorable * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change 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, U.S. 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. Title 10, U.S. Code, Section 1556 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 4. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities issued a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-9 (Uncharacterized Separations). Soldiers separated in an entry- level status received an uncharacterized character of service. The regulation considered a separation as entry level when processing began during the Soldier's first 180 days of continuous active duty; for Army National Guard Soldiers, entry-level status started upon enlistment, and continued for 180 days after the start of training. On a case-by- case basis, the Secretary of the Army could issue an honorable character of service to entry-level Soldiers when clearly warranted by unusual circumstances involving personal conduct or duty performance. 5. Army Regulation 635-40, in effect at the time, prescribed policies and procedures for the evaluation and final disposition of Soldiers determined to be unfit due to physical disability. a. Chapter 5 (Separation for Non-Service Aggravated, EPTS Conditions upon Soldier's Waiver of PEB Evaluation). (1) Under this chapter, Soldiers could waive their right to PEB evaluation and elect separation. To qualify for this separation, the Soldier had to have been on active duty for more than 30 days; in addition, the Soldier must meet the following criteria: * Soldier was eligible for referral into the disability system * Soldier did not meet medical retention standards, as determined by an MEB * The disqualifying defect or condition existed prior to entry on the Soldier's current period of active duty and had not been aggravated by such duty * Further hospitalization or institutional care was not required * After being advised of the right to a full and fair hearing, the Soldier still desired to waive PEB action * Soldier was advised that a PEB evaluation was needed for receipt of Army disability benefits, but waiver of the PEB did not prevent the Soldier from applying for VA benefits (2) When the Soldier was in an entry-level status, Army policy required the issuance of an uncharacterized character of service. 6. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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 UOTHC 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. 7. 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. 8. 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) AR20220006809 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1