IN THE CASE OF: BOARD DATE: 11 April 2023 DOCKET NUMBER: AR20220007476 APPLICANT’S REQUEST: The Board change her reason for separation from the New Jersey Army National Guard (NJARNG) to show a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form (SF) 93 (Report of Medical History) * SF 88 (Report of Medical Examination) * DD Form 1966 (Application for Enlistment – Armed Forces of the United States) * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * National Guard Bureau (NGB) Form 21 (Annex A – DD Form 4 – Enlistment or Reenlistment Agreement – Army National Guard) * DA Form 2-1 (Personnel Qualification Record – Part II) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Two NJARNG Orders * NJDOD Form 25 (Request for Discharge (NJARNG)) * NJARNG Memorandum * Record of phone conversation * NGB Form 23 (ARNG Retirement Credits Record) * NGB Form 22 (Report of Separation and Record of Service) * NGB Form 22-1 (Request/Decline Copy of NGB Form 22, Narrative Reason for Separation) * NGB Form 55 (Honorable Discharge Certificate) * NJARNG Document showing date, organization, and change of status * Four letters of support * State Department of Labor and Workforce Development Order for Total Disability FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), 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, in effect, the NJARNG discharged her because she was a lesbian; she received a "dishonor discharge" due to being gay. Her drill sergeant prepared some charges against her on "dishonor charge papers," but she cannot remember exactly what her drill sergeant wrote. a. The applicant discloses she felt shame and hurt when her drill sergeant found out she was gay; her drill sergeant told her, "Uncle Sam doesn't tolerate gays in the Army," and that there was no place for the applicant in the drill sergeant's platoon. b. The applicant did not want her peers to find out about her sexual orientation, so she just signed to papers; however, what transpired then has bothered her for over 42 years. She did not tell her family about the foregoing events until a week ago, and the applicant goes on to explain that her drill sergeant told her she had seen the applicant kissing a white girl who was also gay; this all happened while the applicant was home and off-duty. The applicant later learned the drill sergeant lived near the applicant's home and had observed the applicant while the drill sergeant was taking her mother to a doctor's appointment. After the drill sergeant saw the applicant, the applicant was out, but she will never forget how, at drill that weekend, she was treated like dirt, and she remembers being afraid to say anything about her sexual orientation. c. During drill, her drill sergeant was short-handed, so she used the applicant to help unload supplies. On Sunday, the drill sergeant called the applicant into her office to sign papers stating the applicant was getting out of the NJARNG. The drill sergeant also told the applicant that two other females had claimed the applicant had looked at them and made them feel uncomfortable; the two females in question were black and older, as the applicant now recalls, but no one had ever told her about what the two females said before then. What her drill sergeant told her has always stayed in the applicant's mind as something very hurtful. 3. Counsel states the applicant is appealing to the ABCMR for a medical retirement, temporary disabled retirement, or a military retirement; the basis for this request is the following: the underlying reason for separation was procedurally defective; the adverse action was unfair; and the discharge is now inequitable. a. Procedural Posture. The applicant has exhausted all means of appealing locally, and pursuant to applicable Army regulations, her appeal is properly brought before the Board; counsel offers reasons why the 15-year statute of limitations (sic) should not apply. b. Legal Standard. "By statute 10 U.S.C. § (section) 1553, the Secretary of the Navy is authorized to correct errors or remove injustices from any military record." "To conduct this review, the Secretary has adopted regulation 32 C.F.R. (Code of Federal Regulations) § 581.3 (ABCMR) establishing the Discharge Review Board (DRB)." Counsel goes on to cite case law addressing the role and authority of DRBs. Counsel additionally notes the guidance provided in the "Hagel Memo," along with the clarifications offered in the 25 ?August 2017 Office of the Undersecretary of Defense for Personnel and Readiness memorandum. c. Background. Counsel states the applicant grew up in, the eldest of three children. Three of her uncles had successfully served in the military, and, while still in school, the applicant began dreaming of her own military career. (1) When the applicant was in 11th grade, the applicant realized and acknowledged she was gay, but, at the time, people were not comfortable with discussing sexual orientation. The applicant hoped to hide her sexual preference when she joined the NJARNG, and she prepared to enlist upon her graduation from high school. (2) The applicant successfully completed basic combat training (BCT); upon reflection, the applicant remembers keeping to herself during BCT, and she notes she and her fellow trainees were quite restricted, and people did not see her interacting with others in a way that could be questioned. (3) When the applicant went to Fort Lee, VA for advanced individual training (AIT), the applicant did not pass the training, and the things that took place were horrific for her. They often told her she looked like a "cute guy," and sometimes people called her, "Sir." The applicant did not choose to look this way, and she felt helpless to control how others perceived her. (4) At first, people tended to take the applicant under their wing, because she was the youngest trainee there; however, the applicant could not hide certain aspects of her physical build and mannerisms, and others started to suspect she was gay. An older African American Soldier initially "mothered" the applicant until she realized the applicant was gay; one day, after learning of the applicant's sexual preferences, she spit in the applicant's face. (5) Counsel notes, as word spread that the applicant was lesbian, she experienced increasing abuse from her fellow Soldiers; two or three nights a week, the Soldiers subjected the applicant to "blanket parties, " where, as the applicant lay in bed, they threw a blanket over her and beat her up through the blanket. The applicant started to stay awake every night, for fear of being attacked, and, as a result, she started to fall asleep during AIT classes. The applicant tried to talk to an older sergeant about what was happening, but when it became apparent where the conversation was going, the sergeant told her, "The Army doesn't like rats." (6) The applicant also could not talk about the abuse to her family because she had not told them she was gay. All of this reinforced for her that she needed to keep her mouth shut about what she was experiencing. The applicant felt ashamed and terrified, and she began to experience "heavy anxiety and depression"; she started to cut herself, and she would hide the cuts by wearing long sleeved uniforms. (7) One day, while off-post, a sergeant saw the applicant kissing a white girl; later, at work, and the sergeant pulled the applicant aside and directly asked the applicant if she was a homosexual; the applicant denied being gay. After a full day of work, the sergeant called the applicant aside again and told her it "just wasn't working out" for the applicant to remain in the Army, and that the applicant had made other female Soldiers uncomfortable because they thought she was staring at them. The sergeant urged the applicant to get out of the Army and told her it would be a quiet, honorable discharge. The applicant felt too ashamed and embarrassed to tell her parents, so she quietly did as she was told. (8) Life after leaving the Army was not easy for the applicant; she experienced terrible discrimination at many of her jobs. She eventually accepted employment at a New Jersey township but only received more abuse. (a) People hung nooses on her locker, drew monkey faces on pictures of then-President Obama, and called the applicant derogatory names. On one occasion, as she was leaving the locker room, she heard some men asking, "Where is the coon?" and she realized they were talking about her. (b) Things became so unbearable at work that the applicant completely lost control and started screaming endlessly in pain and anguish; she ended up being admitted to a psychiatric hospital for a week. (9) The applicant is married, and she and her wife have adopted a son. The made a settlement with the applicant after her breakdown, and the township acknowledged the racism, discrimination, and abuse the applicant had endured. As part of the settlement, the applicant sees a therapist twice a week, paid for by the township, but she has not been able to confide in the therapist about the private shame she felt while in the Army. The therapist has diagnosed the applicant with PTSD, anxiety, and depression, and the State has awarded her full disability. The applicant desires the Army to upgrade her discharge to honorable so she can receive Department of Veterans Affairs (VA) medical benefits. d. Analysis and Argument. Counsel offers the following two arguments: (1) The applicant's separation has a procedural defect, in that the applicant should have been properly diagnosed to affirm the presence of a service-connected injury prior to discharge. (a) Current Army regulations state that disposition through medical channels takes precedence over administrative separation processing. In the applicant's case, the NJARNG separated her without referring her first into the Disability Evaluation System (DES), where she could have been considered for placement on the Temporary Disability Retired List (TDRL). (b) When a Soldier is injured, and the command is aware of that injury, regulations state a line-of-duty (LOD) investigation must be initiated within 7 days, regardless of the Soldier's status at the time of injury. Counsel asserts, "In this case, the severity of the injury, which ultimately resulted in the member being unfit for duty, would have required a finding of unfit and a determination of whether or not [applicant] was injured in-the-line-of duty (ILOD)"; the command, however, never conducted an LOD. (c) Counsel continues, "Without an LOD, there is a presumption that the servicemember was ILOD, regardless of their present status"; the applicant's command ignored this fact. failed to properly initiate medical evaluation board proceedings, and separated the applicant, causing further injury, depression, and anxiety. (2) The fundamental reason for the applicant's separation was substantially deficient; counsel essentially reiterates his previous contention, maintaining the applicant should have been referred into the Army's DES; as a result, the applicant's command did not have the proper authority to administratively separate the applicant. 4. Applicant provides documents from her service record, her State's disability order, and four letters of support. a. The applicant's State disability documentation shows the award of total and permanent disability, as of 25 September 2012. Among the applicant's medical conditions is "psychiatric injury," incurred, on 6 December 2004. (1) The document additionally lists pre-existing, non-compensable disabilities, which include congenital "bipolar disorder, mixed state with major depressive disorder with psychotic features, schizophrenia paranoid type." (2) Under "Remarks," the comment states, "Respondent is not responsible for treatment for any psychiatric condition other than PTSD, anxiety, and depression as those conditions relate to her work-related injuries only." b. Four letters of support, wherein the applicant's friends affirm she is kind-hearted, unbiased, and committed to task completion, once she starts a project. The applicant is able to interact with a variety of people, and she never shows indifference; her integrity, punctuality, self-confidence, and unflappability make her an asset to anyone who crosses her path. 5. The applicant's service records are unavailable for review; during the applicant's era of service, State ARNGs maintained service records instead of the National Personnel Records Center, and efforts to obtain the applicant's records were unsuccessful. The documentary evidence provided by the applicant, however, is sufficient to address the applicant's request. A review of those documents shows the following: a. On 19 May 1980, after obtaining her parents' permission, the applicant enlisted into the NJARNG for 6 years; she was 17 years and 5 months old. (1) The applicant's DD Form 1966 indicates that, upon her enlistment, she had not yet graduated from high school, and she listed her occupation as "Student." (2) Paragraph 5 of her NGB Form 21 states, "If I am a female high school senior, I understand that I will be ineligible for continued participation in the ARNG and that my enlistment will be terminated unless I graduated from high school prior to the date I am required to report for IADT. I further understand that I cannot enter IADT until completion of high school. I must enter IADT within 270 days of enlistment." b. On 14 July 1980, she entered active duty to complete BCT at Fort Jackson, SC, and she arrived at her BCT unit, on or about 24 July 1980. On 11 September 1980, following her graduation from BCT, orders honorably released her from active duty and returned her to the NJARNG. c. NJARNG Orders, dated 6 May 1981, directed the applicant to report, not later than 22 June 1981, to the U.S. Army Training Center at Fort Lee for AIT in military occupational specialty (MOS) 76Y (Unit Supply Specialist); on or about 22 June 1981, the applicant arrived at her AIT unit. d. On 3 August 1981, the applicant's AIT unit notified the NJARNG via telephone that the applicant had academically failed the 76Y course but indicated the applicant wished to pursue a 4-week course for MOS 76V (Materiel Storage and Handling Specialist); the 76V course was scheduled to start, on 5 August 1981. In a note recording the phone conversation, the NJARNG wrote, "Problems: HS Senior in Sep 81; Possibility of being up to a week late for classes in Sep." "Answer - per MSG (master sergeant) return to unit of asgmt w/no MOS." e. On 3 August 1981, the U.S. Army Quartermaster Center and Fort Lee issued an amendment to the applicant's orders, showing the applicant had been recalled to her parent unit without an MOS, per a phone conversation between the NJARNG and the school. The orders instructed the applicant to proceed to home station, on 6 August 1981, where upon she would be released from active duty; the documents provided by the applicant do not include either a DD Form 214 or a DD Form 220 (Active Duty Report) for this period of active duty service. f. On 12 August 1981, the NJARNG issued a memorandum to the applicant's unit, directing the completion of an NJDOD Form 25 based on the applicant's failure to complete initial active duty for training (IADT). (1) On 14 August 1981, the applicant's NJARNG unit generated an NJDOD Form 25, requesting the applicant's separation because she had not completed IADT. (2) On 10 September 1981, NJARNG orders honorably discharged the applicant from the NJARNG, effective 5 August 1981; the orders listed the separation authority as "Para (paragraph) 7-9ad (Concurrent Discharge from ARNG and as a Reserve of the Army – Failure to Complete IADT), NGR (National Guard Regulation) 600-200 (Enlisted Personnel Management)." (3) The applicant's NGB Form 22 shows she completed 1 year, 3 months, and 9 days of net service in the NJARNG, and item 18 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) listed the award of a marksmanship qualification badge. 6. NGR 600-200, in effect at the time, prescribed policies and procedures for the personnel management of enlisted ARNG Soldiers. a. Section II (Required Training), paragraph 3-7 (Policy) stated all non-prior service personnel were to be ordered to perform IADT in order to qualify in an MOS. b. Paragraph 3-10 (Failure to Report For or Complete IADT after being Ordered) stated individuals who could not successfully complete IADT were to be processed for discharge; the regulation stated the applicable provision was paragraph 7-9ad. c. Paragraph 3-23b (Rights and Benefits – Physical Disability) stated, in the event of physical disability, the member was entitled to hospital benefits and compensation; in addition, the members could become entitled to retirement or separation for physical disability. d. Paragraph 7-9p (Physical Disability). An enlisted Soldier considered to be physically disqualified for continued military service by reason of injuries or illness was to be discharged due to physical disability per the following provisions: * The unit commander directed the Soldier to present himself or herself to a medical examiner, who was to perform a complete physical examination; after receiving the examination results, the unit commander forwarded those results to the State The Adjutant General (TAG) * When a disability was incurred in the line of duty, the procedure stated that NGR 40-3 (Medical Care for ARNG Members) would apply e. Paragraph 7-9ad stated individuals who, for any reason not previously listed in paragraph 7-9, were unable to complete IADT, they were to be discharged. This provision did not include a requirement of a medical evaluation prior to separation processing. 7. NGR 40-3, in effect at the time, stated, in paragraph 10b (Disposition of Hospitalized Cases – Retirement or Separation) that retirement or separation due to physical disability, with or without severance pay, was authorized by a PEB, per Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation). Eligibility was limited to individuals disabled while performing authorized training or duty, or as a result of a disease contracted when the Soldier was on full-time training duty and under a call or order that did not specify a period of 30 days or less. 8. AR 635-40, in effect at the time, prescribed policies and procedures for the Army Physical Disability Evaluation System (PDES). a. Paragraph 2-1 (Standards of Unfitness because of Physical Disability). The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, grade, rank, or rating. b. Paragraph 2-4 (Line-of-Duty (LD) Decisions). For this regulation, LD decisions were considered to be in two categories: * Whether the disability is the result of the member's intentional misconduct or willful neglect or was incurred during a period of unauthorized absence * Whether the disability was incurred or aggravated while the member was entitled to basic pay c. Paragraph 2-8 (TDRL). The TDRL provided a safeguard for the Government against permanently retiring a member who later fully recovered, or nearly recovered, from the disability; conversely, it protected the Soldier from being permanently retired with a condition that could be expected to develop into a more serious and permanent disability. The requirements for placement on the TDRL were the same as for permanent disability retirement; the Army used the TDRL as a "pending list" for unfit members. d. Paragraphs 4-6 (Referral by Commanders of MTFs (Medical Treatment Facilities)) and 4-7 (Referral by Commanders) stated MTF commanders and unit commanders had the authority to refer Soldiers for evaluation and possible referral into the PDES; paragraph 4-8 (The MTF Commander) required the MTF commander to conduct the evaluation and then advise the Soldier's commander of the results. If the evaluation indicated the Soldier might be failing the medical retention standard in AR 40-501 (Standards of Medical Fitness), the commander was to refer the Soldier to a medical evaluation board (MEB). e. Paragraph 4-12 (Conduct of MEBD (Medical Evaluation Board) Proceedings). The MEB evaluated whether the Soldier met AR 40-501 medical retention standards, and if he/she failed those standards, the MEBD referred the Soldier to a physical evaluation board (PEB) for a fitness determination. f. Paragraph 4-18 (PEB Decisions – Common Criteria). (1) PEB voting members were to decide on findings and recommendations for each disability case based on the following; whether: * Soldier was fit or unfit to perform the duties of his/her office, grade, rank, or rating * Disability did or did not result from intentional misconduct or willful negligence, and/or during a period of unauthorized absence * Disability was or was not permanent (2) After establishing that a Soldier was unfit, the PEB had to determine the percentage rating applicable to the disabling condition; for this, the PEB referred to the VA's Schedule of Rating Disabilities (VASRD), as modified by the Army in an appendix. g. Table 4-3 (Eligibility Index Table for Regulars and Members on Active Duty for More than 30 days) showed that Soldiers whose combined disability rating was 30 percent, or more were recommended for placement on either the permanent disability retired list, or, when the disability might not be permanent, the temporary disability retired list. When Soldiers' combined ratings were below 30 percent, they were separated. If the disabling condition was incurred ILOD, the Soldier could receive severance pay; if not ILOD, no severance pay was issued. 9. The applicant states, while in AIT, her fellow Soldiers subjected her to "blanket parties." In the 1980s, the Army had no explicit policies or procedures defining or prohibiting hazing or similar behaviors. a. The Army's Center of Military History first officially documented hazing in the 1990s and noted that hazing appeared to serve three functions: socialization, cohesion building, and a way to "weed out" individuals who were unfit or unwilling to serve. b. Military Service Chiefs formally and collectively created a "Zero Tolerance" posture in 2012, and, between Fiscal Year 2012 and Fiscal Year 2017, the Service Chiefs implemented numerous initiatives, surveys, and major policy changes designed to gain traction in prevention education and training, and for the reporting of hazing and bullying. c. The National Defense Authorization Act (NDAA) for FY 2015 required the Government Accounting Office (GAO) to prepare a report about hazing prevention policies and to initiate systems to track incidents of hazing in each of the Military Departments. Thereafter, the Department of Defense (DOD) implemented its own policy that directed all Military Departments and the National Guard Bureau to promulgate appropriate punitive regulations, and to provide updated definitions of hazing, bullying, and problematic activities; the policy further mandated standardized incident tracking and reporting to inform preventative training and education. 10. Department of Defense Guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 11. Published guidance to the BCM/NRs 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. 12. MEDICAL REVIEW: a. Background: The applicant is requesting the Board change her reason for separation from the New Jersey Army National Guard (NJARNG) to show a medical retirement. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the New Jersey Army National Guard (NJARNG) with parental permission, on 19 MAY 1980. She entered active-duty training 14 July 1980. * The applicant entered AIT training 22 June 1981. On 3 August 1981, the AIT unit notified the NJARNG that she had academically failed. She was returned to her unit, unable to reclassify at that time. * On 10 September 1981, NJARNG orders honorably discharged the applicant from the NJARNG, effective 5 August 1981, for failure to complete IADT. * The applicant asserts that she was discharged for being a lesbian, that she experienced injuries while at AIT, and that she should have received medical retirement. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, the applicants ABCMR Record of Proceedings (ROP), the applicant’s separation military documentation, and all other supporting documents. The VA electronic medical record and DoD health record available for review through Joint Longitudinal View (JLV) and AHLTA were also reviewed, however did not contain any data. No additional hardcopy military treatment records were provided for review, however civilian records for proof full and permanent disability secondary to civilian work was provided. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant has reported that she was dishonorably discharged for being a lesbian and received injuries (bullying/hazing and abuse) when others discovered she was a lesbian during AIT. A DD 214 was not provided with the supporting documents; hence a narrative reason and separation code were not available for review. That said, during a review of the records provided, it appears that she was honorably discharged after she did not complete AIT. Hence, currently there is no upgrade available considering her honorable characterization. In addition, all service records provided state she was discharged due to not completing AIT; there is not mention of her sexual orientation as part, or as the whole reason for discharge. e. The applicant has petitioned for consideration of medical discharge or a medical retirement, secondary to reported injuries that occurred during AIT. At this time, there is no evidence of said injuries nor of any psychological condition during her time in service. The applicants supporting records do show evidence of psychiatric condition(s) secondary to injuries incurred while working as a civilian, with Permanent Total disability awarded by the state of y, with an effective date of 25 September 2012. Specifically, the Order for Total Disability document has psychiatric injuries listed as occurring on 6 December 2004, and also has listed “Bipolar disorder mixed state with major depressive disorder with psychotic features, schizophrenia paranoid type” as pre-existing and non- compensable disabilities with an onset in 1990. There are no medical records available in AHLTA or JLV to support any physical or psychological injuries. There were no medical records provided by the applicant to support experiences of injury while in the service or at AIT. There is no mention in her service records of any alleged injuries to her command team. f. Based on the available information, it is the opinion of this Agency Behavioral Health Advisor that there is insufficient evidence to support a referral to IDES process at this time. Medical fitness is presumed during her time in service, given she entered active duty stating she was medically fit, and given there is currently insufficient evidence that her status changed during her time in service. There is insufficient evidence to support the applicant’s assertion that her sexual orientation resulted in a dishonorable discharge as her records indicate she was honorably discharged due to failing to meet the academic requirements of her AIT program. The applicant may want to consider engaging with her local VSO to explore options for psychiatric care and compensation through her local VA. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Not applicable. 2. Did the condition exist or experience occur during military service? Not applicable. 3. Does the condition or experience actually excuse or mitigate the discharge? Not applicable. 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. The evidence of record shows the applicant enlisted in the NJARNG in 1980. She entered AIT training on 22 June 1981. On 3 August 1981, the AIT unit notified the NJARNG that she had academically failed. She was returned to her unit, unable to reclassify at that time. On 10 September 1981, NJARNG orders honorably discharged her from the NJARNG, effective 5 August 1981, for failure to complete IADT. She asserts that she was discharged for being a lesbian, that she experienced injuries while at AIT, and that she should have received medical retirement. The Board reviewed the advisory official’s finding and agreed that there is insufficient evidence to support a referral to integrated disability evaluation system. There is insufficient evidence to support the applicant’s assertion that her sexual orientation resulted in a discharge as her records indicate she was discharged due to failing to meet the academic requirements of her AIT program. Based on a preponderance of evidence, the Board determined that the reason for separation 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, 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. NGR 600-200, in effect at the time, prescribed policies and procedures for the personnel management of enlisted ARNG Soldiers. a. Section II (Required Training), paragraph 3-7 (Policy) stated all non-prior service personnel were to be ordered to perform IADT in order to qualify in an MOS. b. Paragraph 3-10 (Failure to Report For or Complete IADT after being Ordered) stated individuals who could not successfully complete IADT were to be processed for discharge; the applicable provision of paragraph 7-9ad. c. Paragraph 3-23b (Rights and Benefits – Physical Disability) stated, in the event of physical disability, the member was entitled to hospital benefits and compensation; in addition, the members could become entitled to retirement or separation for physical disability. d. Paragraph 7-9p (Physical Disability). An enlisted Soldier considered to be physically disqualified for continued military service by reason of injuries or illness was to be discharged due to physical disability per the following provisions: * The unit commander directed the Soldier to present himself or herself to a medical examiner, who was to perform a complete physical examination; after receiving the examination results, the unit commander forwarded those results to the State The Adjutant General (TAG) * When a disability is incurred in the line of duty, the procedure stated in NGR 40-3 (Medical Care for ARNG Members) will apply e. Paragraph 7-9ad stated individual who, for any reason not previously stated in paragraph 7-9, were unable to complete IADT, they were to be discharged. This paragraph did not include a requirement of a medical evaluation prior to separation processing. 3. NGR 40-3, in effect at the time, stated, in paragraph 1b (Disposition of Hospitalized Cases – Retirement or Separation) that retirement or separation due to physical disability, with or without severance pay, was authorized by a PEB, per Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation). Eligibility was limited to individuals disabled while performing authorized training or duty, or as a result of a disease contracted when the Soldier was on full-time training duty and under a call or order that did not specify a period of 30 days or less. 4. AR 635-40, in effect at the time, prescribed policies and procedures for the Army Physical Disability Evaluation System (PDES). a. Paragraph 2-1 (Standards of Unfitness because of Physical Disability). The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, grade, rank, or rating. b. Paragraph 2-4 (Line-of-Duty (LD) Decisions). For this regulation, LD decisions were considered to be in two categories: * Whether the disability is the result of the member's intentional misconduct or willful neglect or was incurred during a period of unauthorized absence * Whether the disability was incurred or aggravated while the member was entitled to basic pay c. Paragraph 2-8 (TDRL). The TDRL provided a safeguard for the Government against permanently retiring a member who later fully recovered, or nearly recovered, from the disability; conversely, it protected the Soldier from being permanently retired with a condition that could be expected to develop into a more serious and permanent disability. The requirements for placement on the TDRL were the same as for permanent disability retirement; the Army used the TDRL as a "pending list" for unfit members. d. Paragraphs 4-6 (Referral by Commanders of MTFs (Medical Treatment Facilities)) and 4-7 (Referral by Commanders) stated MTF commanders and unit commanders had the authority to refer Soldiers for evaluation and possible referral into the PDES; paragraph 4-8 (The MTF Commander) required the MTF commander to conduct the evaluation and then advise the Soldier's commander as to the results. If the evaluation indicated the Soldier might be failing medical retention standards, as outlined in AR 40-501 (Standards of Medical Fitness), the commander referred the Soldier to a medical evaluation board (MEB). e. Paragraph 4-12 (Conduct of MEBD (Medical Evaluation Board) Proceedings). The MEB evaluated whether the Soldier met AR 40-501 medical retention standards, and if he/she failed those standards, the MEBD referred the Soldier to a physical evaluation board (PEB) for a fitness determination. f. Paragraph 4-18 (PEB Decisions – Common Criteria). (1) PEB voting members were to decide on findings and recommendations for each disability case based on the following; whether: * Soldier was fit or unfit to perform the duties of his/her office, grade, rank, or rating * Disability did or did not result from intentional misconduct or willful negligence, and/or during a period of unauthorized absence * Disability was or was not permanent (2) After establishing that a Soldier was unfit, the PEB had to decide the percentage rating to apply to the disabling condition; for this, the PEB applied the VA's Schedule of Rating Disabilities (VASRD), as modified by the Army in one of the regulation's appendices. g. Table 4-3 (Eligibility Index Table for Regulars and Members on Active Duty for More than 30 days) showed that Soldiers whose combined disability rating was 30 percent, or more were recommended for placement on either the permanent or, when the disability might not be permanent, the temporary disability retired list. When Soldier's combined ratings were below 30 percent, they were separated. When the disabling condition was incurred ILOD, the Soldier could receive severance pay; if not ILOD received, no severance pay was issued. 5. 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 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. 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. 8. Military history accounts for and suggests that some of the most harrowing hazing incidents took place during basic combat training (BCT). There is a long history of sanctioned abuse, hazing, and bullying dating back to the 1940's. Even as early as the 1950s, the Army knew of, but did not attempt to regulate or even discourage, hazing during basic combat training. One of the earliest published studies on hazing occurred in 1992; while the 1992 study provides some invaluable insights, there continued to be a glaring lack of information until 2012. a. In January 2012, all the Military Departments Service Chiefs formally coordinated action to create a "Zero Tolerance" posture; to this end, the Fiscal Year (FY) 2013 National Defense Authorization Act (NDAA) required each of the service secretaries to provide an initial report regarding efforts to address hazing. (1) Defense Equal Opportunity Management Institute (DEOMI) published an 'Executive Summary on Hazing in the Military," dated 7 February 2012, that showed Department of Defense (DOD) did not have a standard definition for hazing, it only addressed hazing behaviors; in addition, all the services had independent definitions of hazing and lacked a definition for bullying. (2) Defense Manpower Data Center (DMDC) reported there was no database on hazing or bullying in the military, and, as of 2012, none of the Force Survey documents addressed hazing and bullying. As a result, both DMDC and DEOMI began conducting surveys that addressed bullying-like behaviors within the context of discrimination. b. In a study conducted by DEOMI, "Hazing: A Military Study," Technical Report No. 01-14, hazing was seen to serve three functions – socialization, cohesion-building, and weeding out those unfit or unwilling to serve. In 2014, a DOD survey revealed that male hazing was the most common type of sexual assault, and that hazing, and bullying involved not just sexual assault, but other forms of violence as well. c. The National Defense Authorization Act (NDAA) for FY 2015 required the Government Accounting Office (GAO) to prepare a report on the policies to prevent hazing and to initiate systems to track incidents of hazing in each of the Military Departments. (1) On 23 December 2015, DOD issued a policy memorandum, Subject: "Hazing and Bullying Prevention Response in the Armed Forces." It provided enterprise- wide guidance on prevention training and education, as well as requirements for tracking and reporting incidents of hazing. (a) Incidents of hazing that involved allegations of sexual assault, sexual harassment, or discrimination were to adhere to governing laws, regulations, and policies and to prohibit hazing in all circumstances and environments, including “’off- duty’ or in ’unofficial’ unit functions with a nexus to military service…The prohibition of hazing extends to such misconduct committed via electronic communications." (b) The DOD policy directed that the Military Departments and the National Guard Bureau to promulgate appropriate punitive regulations, and to provide updated definitions of hazing and bullying and examples of activities likely to be considered problematic; the policy also mandated standardized incident tracking and reporting to inform preventative training and education. (2) In February 2015, the GAO submitted a report to Congress outlining seven recommendations DOD needed to take to increase oversight on hazing incidents involving service members. DOD concurred with all seven recommendations, which further supported the Hazing and Prevention efforts already in progress to include publishing an Anti-Harassment directive during FY 2018 that updated the requirements outline in the aforementioned policy memorandum dated 23 December 2015. d. A DOD Summary Report on Hazing Prevention and Response in the Armed Forces, for reporting period 23 December 2015 – 25 April 2016, showed a number of accomplishments and best practices reported for FY 2016. These included the establishment of the DoD Hazing Bullying Workgroup, which was comprised of senior subject matter experts from the DOD Office of the General Counsel, DEOMI, the Military Departments, and the Office of the Secretary of Defense. This group provided a forum to synchronize efforts across DOD and the Military Departments; which included: * developing effective prevention and response policies; * using from studies to redefine hazing, existing processes in place, and to develop a comprehensive database; * producing a key deliverable, "Commander's Guide to Hazing Prevention," used as a tool to help commander's identify and respond to hazing incidents at the unit level; and * updating the 1997 Secretary of Defense Policy Memorandum on Hazing e. As part of the result from the 2016 GAO report, FY 2017 NDAA legislated "Improved Department of Defense prevention and Response Hazing in the Armed Forces,” which requires the establishment of a database on hazing incidents, improved training on hazing, and annual reports to Congress. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007476 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1