IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220007448 APPLICANT REQUESTS: Upgrade of the characterization of her service from "Uncharacterized" to "Honorable," and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * U.S. Army 88th Regional Support Command (RSC), Fort Snelling, Minnesota, memorandum, dated 22 July 1999 * Orders 328-6, issued by the 88th RSC, Fort Snelling, Minnesota on 24 November 1999 * National Personnel Records Center (NPRC), Saint Louis, Missouri letter, dated 3 October 2021 * Letter addressed to BJS, 3rd Brigade, Judge Advocate's Office, Fort Knox, Kentucky, dated 7 November 1997 * DA Form 4430 (Department of the Army Report of Result of Trial) * Special Court-Martial Order Number 52, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky on 12 July 2001 * U.S. Senate letter, dated 8 November 2002 * Agreed Judgement Entry rendered by the Court of Common Pleas of Franklin County, Ohio, Division of Domestic Relations * Marine Corps Installations West-Marine Corps Base – Camp Pendleton Certificate of Appreciation, dated 10 April 2014 * Documentation of a psychiatric video consult, dated 19 January 2002 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states her discharge was unjust punishment for being sexually assaulted. She is seeking an upgrade of her service characterization and the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) to assist in her ongoing treatment with the Department of Veterans Affairs (DVA) for Military Sexual Trauma (MST). She became pregnant as a result of the assault and had to go to court regarding custody of the child. She wanted, and still wants, to honor this great nation by fulfilling her enlistment contract. However, due to the criminal act of her superior, she was discharged and still requires medical treatment and counseling for post-traumatic stress disorder (PTSD) and anxiety. 3. The applicant underwent a pre-enlistment medical examination on 25 January 1999 and was found to be qualified for service. She enlisted in the U.S. Army Reserve (USAR) on 25 January 1999, for a period of 8 years. a. A DA Form 3540 (Certificate and Acknowledgment of USAR Requirements and Methods of Fulfillment) shows the applicant indicated understanding of her military obligation, the methods of fulfilling that obligation, and participation requirements. She incurred a statutory military service obligation of 8 years and a contractual obligation to serve 6 years as an assigned member of a troop program unit (TPU) in the Selected Reserve and 2 years as an assigned member of the Individual Ready Reserve (IRR) unless she voluntarily elected to remain assigned and continued to satisfactorily participate as a member of a TPU. b. A U.S. Army Recruiting Command (USAREC) Form 1122 (USAREC Addendum to DA Form 3540) shows she was scheduled to do the following, on: * 11 August 1999 – report back to the Military Entrance Processing Station * 16 August 1999 – report to the Reception Battalion located at Fort Jackson, South Carolina * 20 August 1999 – begin Basic Training at Fort Jackson, South Carolina c. A USAREC Form 1127 (Statement for Enlistment (or Appointment) Army Policy) shows the applicant fully acknowledged that she had the duty and responsibility to report immediately any violation of the Army sexual harassment policy. She further acknowledged her awareness that the Army has zero tolerance for sexual harassment and understanding of how to contact the Commander or Executive Officer of the Columbus Recruiting Battalion in the event a violation occurred while she was a member of the Delayed Entry/Training Program. 4. The applicant's record is void of a DD Form 368 (Request for Conditional Release) or allied documents. However, a U.S. Army 88th RSC, Fort Snelling, Minnesota, memorandum, Subject: Request for Conditional Release for [the applicant], dated 22 July 1999, shows: a. The applicant's request for Conditional Release from the USAR was disapproved. b. Since the applicant wished to no longer honor her enlistment contract, she must be discharged from the USAR. Soldiers who were in an Initial Active Duty Training (IADT) status would not be released for the sole purpose of enlisting into another service. 5. Orders 328-6, issued by the 88th RSC, Fort Snelling, Minnesota on 24 November 1999, show the applicant was discharged from the USAR under the authority of Army Regulation 135-178 (Army National Guard and USAR – Enlisted Administrative Separations), effective 24 November 1999, with an uncharacterized discharge. 6. The applicant's record is void of evidence, and she did not provide evidence that shows she was a victim of sexual assault, diagnosed with MST, PTSD, or any other behavioral health condition during her period of service. 7. The applicant provides the following (provided in entirety for review): a. A NPRC letter, dated 3 October 2021, that shows the applicant was informed that she was not issued a DD Form 214, because she had no active service or less than 90 consecutive days of active duty for training. b. A letter addressed to BJS, 3rd Brigade, Judge Advocate's Office, Fort Knox, Kentucky, dated 7 November 1997, shows an Assistant State's Attorney from the Juvenile Trial Division, Juvenile Justice Complex, Vernon Hills, Illinois, responded to a request for information regarding cases on two minor children. Each case alleged physical abuse by their father, SP, to both minors and sexual abuse to one minor. The case went to trial on 10 July 1997, 28 August 1997, and 16 October 1997, to determine whether the minors were physically and/or sexually abused. The Judge found that both minors had been physically abused by their father. The applicant is not referred to by name in this document. c. A DA Form 4430 and Special Court-Martial Order Number 52, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky on 12 July 2001, which shows the results of a trial by Special Bad Conduct Discharge Court-Martial on 25 and 26 January 2001, at Headquarters, U.S. Army Armor Center and Fort Knox, Kentucky, in the case of the U.S. versus Sergeant First Class SP, U.S. Army Recruiting Battalion Columbus, Columbus, Ohio. The applicant is not referred to by name in these documents (1) SP was found guilty of: * Charge I – Specification: Disobeying a lawful general regulation, by wrongfully having personal and unofficial contact with a female who was the subject of recruiting efforts between on or about 11 April 1999 and August 1999 * Charge II – Specification: Making a false official statement on or about 23 August 1999 (2). SP was sentenced to reduction to the rank/grade of Staff Sergeant/E-6 and to forfeit $1,578.00 pay per month for 2 months. The sentence was adjudged on 26 January 2001. d. A letter from two U.S. Senators, dated 8 November 2002, which shows two senators responded to a request for assistance from the applicant's mother regarding the problems she was encountering with SP. After carefully reviewing the request, they opined that it was a private legal matter, and accordingly, their office could not offer any new information that would be of assistance. e. An Agreed Judgement Entry rendered by the Court of Common Pleas of Franklin County, Ohio, Division of Domestic Relations, shows SP gave his consent for the applicant's husband to adopt TCL, born on 31 January 2000. f. A Certificate of Appreciation was awarded to the applicant in appreciation of her selfless contributions to the service members and families stationed aboard Marine Corps Installations West-Marine Corps Base – Camp Pendleton on 10 April 2014. g. Documentation of a psychiatric video consult with a provider at "timely care" on 19 January 2002, shows the applicant was diagnosed with dysthymic disorder and anxiety disorder, unspecified. She was prescribed medication for depression and anxiety, encouraged to continue in therapy, and provided a safety plan for coping with her conditions. 8. 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. 9. 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 regulation provides, in part: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR is not an investigative body. b. An applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. 10. Published guidance to the Boards for Correction of Military/Navy 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. 11. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her discharge from uncharacterized to honorable. 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) Applicant states unjust discharge due to sexual assault and is seeking upgrade of characterization to assist in ongoing VA treatment for MST. She became pregnant as a result of the assault and had to go to court regarding custody of child. She is still motivated to honor her enlistment contract but asserts that due to a criminal act by a superior she was discharged and still requires treatment for PTSD and anxiety. (2) She enlisted in the USAR on 25 January 1999. She was scheduled to report back to MEPS on 11 August 1999 and ultimately begin Basic Training on 20 August 1999. A Memo dated 22 July 1999 shows request for conditional release was denied. On 24 November 1999 she was discharged from USAR under AR 135-178 with an uncharacterized discharge. She was not issued a DD214. (3) Her record is void of evidence, and she did not provide evidence that shows she was the victim of sexual assault, diagnosed with PTSD, MST, or another other BH condition during her period of service. (4) Additional records, to include legal documents, are summarized in ROP and will not be fully recounted. Such records include court-martial related documents for SFC SP, assigned to a US Army Recruiting Battalion; service member was found guilty of multiple violations to include wrongful personal and unofficial contact with a female subject to recruiting efforts between April and August 1999 and making a false official statement. The applicant was not referred to by name in these documents. (5) Documentation of a psychiatric consult 19 January 2002 shows applicant diagnosed with dysthymic disorder and anxiety disorder, unspecified and was prescribed medication and encouraged to continue therapy. ? c. Supporting Documents Applicant asserts PTSD, other mental health, and MST associated with her request. All records contained in the file were reviewed as part of this advisory. Legal records available in the file (eg, referencing child support and consent for another party to adopt a minor child) imply that SP, referred to in the ROP, is the biological father of the applicant’s child although there is no specificity to the nature of their prior relationship. The date of birth of the child is listed as 31 January 2000. Timely Care psychiatric documentation noted in ROP reviewed and appreciated. It is dated 19 January 2022 with diagnoses of dysthymic disorder and anxiety disorder, unspecified but is void of narrative data. Per memo dated 26 September 2022, a search of the Army criminal file index revealed no records for applicant. d. AHLTA The Army electronic medical record, AHLTA, was reviewed and contained data associated with her care (apparently as a dependent) dating back to 2005. Numerous encounters reference history of depression and use of psychotropic medications dating back to entries beginning 19 October 2005. The available records will not be fully summarized as they appear to contain limited information associated with the applicant’s current case. e. JLV Available VA records were reviewed via JLV. Records indicate no service-connected conditions, and she is coded as mental health for MST treatment only. Contacts with VA date back to 16 December 2021 at which time she contacted a facility MST coordinator by phone. A 12 January 2022 telephone note referenced SI with hospitalization in 2003 triggered by “unaddressed trauma” in 1999-2000, “sexual assault in the military.” MH Intake dated 16 March 2022 includes, in part, “A Sergeant I didn't know, he was a recruiter came to my home. Then I was processed and enlisted, then assault started after the initial process. He coerced me into sex, he would prey on me, he would stalk me, and he would show up and pick me up, then ask me to sign paperwork. First time he took me to his home and that was the first time. He would then show up at my home as soon as I would come home from school, he would force himself in and on me. One of the times was in offices where he forced himself on me. He would always whisper to me, ‘if you got pregnant it wouldn't be my child.’ Then I got pregnant from him. It was traumatic event in itself, getting pregnant by him. I was dating my husband at the time. We did a paternity test and it was negative so I knew it was my recruiter. After I had my son, I was so depressed, I can't remember. I did report him and he was court marshalled, and I went through that process. He still took me to regular court for custody of our son - for years I had to go through that and I was suicidal then. My mom helped me.” Numerous diagnoses were made to include PTSD, obsessive-compulsive disorder, and depression. Veteran has remained in consistent care since this time for PTSD/MST-related issues. Most recent contact at time of this advisory appears to be 26 January 2023 which referenced recent treatment in a Women’s Group and Cognitive Processing Therapy for PTSD (advisor’s note - a gold standard empirically validated psychotherapy for PTSD), and frustration over having claim for PTSD denied by VBA. She is currently on multiple psychotropic medications to target her symptoms. 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 asserts PTSD, other mental health conditions, and MST associated with the circumstances of discharge, and she has received a VA diagnosis of PTSD secondary to reported history of MST. 2. Did the condition exist or experience occur during military service? Yes. The applicant’s assertion is supported by her VA diagnosis and determination of limited current eligibility for MST services only. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts MST associated with the circumstances of separation from service. She has a long history of depression dating back to the early 2000s and has recently been diagnosed with PTSD and begun care with the VA. In addition to her assertion as outlined in the application and described in VA documentation referenced above, available records appear to support (at least by implication) that a. her child was conceived in the period of time cited in proceedings against SP and b. he was the child’s father. Under any circumstances, such a relationship would be inappropriate based on power differential and implied coercion and meet the definition of MST. The applicant, in her VA interview, describes a more actively coercive, assaultive, and threatening set of conditions. Given the circumstances, avoidance of further Army service and reticence to proceed with enlistment would be a natural and reasonable course of behavior for applicant. The advisor finds a nexus between her asserted circumstances (MST with subsequent diagnosis of PTSD) and reasons leading to separation from US Army. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. 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. Soldiers in the USAR and ARNG are authorized and honorable discharge while in entry-level status only if they complete their active-duty schooling and earn their MOS. Upon review of the applicant’s petition, available military records and the medical review, the Board made note of the advising official finding a nexus between her asserted circumstances (MST with subsequent diagnosis of PTSD) and reasons leading to separation from US Army. However, the Board determined the record is absent any reserve component orders and documentation to show the applicant was on active duty in a paid status during this time period. The Board found no grounds to mitigate a change in the applicant’s characterization of service. Therefore, the Board denied relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, 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. 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 135-178, in effect at the time, set forth the basic authority for the separation of enlisted Reserve Component personnel. a. Paragraph 1-18b(1) provided that an honorable characterization of service was appropriate when the quality of the Soldier's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-18b(2) provided that a general (under honorable conditions) characterization of service was warranted when significant negative aspects of the Soldier's conduct or performance of duty outweighed positive aspects of the Soldier's military record. c. Paragraph 1-18b(3) provided that service could be characterized as under other than honorable conditions when discharge was for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. d. Paragraph 1-20 provided that a separation would be described as entry level with uncharacterized service if processing was initiated while a Soldier was in an entry-level status, except when: (1) a discharge under other than honorable conditions was authorized, due to the reason for separation and was warranted by the circumstances of the case; or (2) the Secretary of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. e. Chapter 4 set forth the conditions under which enlisted Soldiers could be separated for the convenience of the Government. Except as otherwise specifically provided in this chapter, a Soldier's service would be characterized as honorable unless an entry level separation was required or characterization of service as general was warranted. f. The glossary provided that a separation would be described as entry level with uncharacterized service if the Soldier had less than 180 days of continuous active duty service at the time separation action is initiated. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], 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 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. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20220007448 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1