IN THE CASE OF: BOARD DATE: 15 August 2023 DOCKET NUMBER: AR20230000228 APPLICANT REQUESTS: upgrade of her uncharacterized discharge, due to entry level performance and conduct to an honorable medical discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, in effect, prior to entering the military she was the victim of sexual assault, at age 14 and she was assaulted by a Naval Recruiter in St. Cloud FL She suffers from posttraumatic stress disorder (PTSD) due to that situation. She also developed other mental health disorders during basic training and advanced individual training (AIT), which was her breaking point. She graduated from AIT and was sent to a mental ward for a while. She was told she was receiving a medical honorable discharge. She needs her discharge to show she was honorably discharged to be entitled to more options/benefits in the State of South Carolina. 3. A review of the applicant’s service record shows she underwent a medical examination for the purpose of enlistment on 18 November 2000. Her SF 88 (Report of Medical Examination) shows she was qualified for enlistment. 4. On 2 January 2001, she enlisted in the Regular Army for a period of 4 years. She was assigned to Fort Sam Houston (FSH), TX, for completion of initial entry training. There is no evidence she was awarded a military occupational specialty (MOS). 5. Between 2 April and 29 June 2001, the applicant was counseled on five separate occasions. She was counseled on: • 2 April 2001, for failure to be at her appointed place of duty at the time prescribed for missing make-up physical training on 30 March 2001 • 18 April 2001, for having government property or personal property unsecure • 22 May 2001, regarding her request for separation • 19 May 2001, for being absent without leave (AWOL) from 12 to 19 May 2001 • 29 June 2001, regarding separation action under chapter 11, AR 635-200 6. On 20 May 2001, the applicant requested discharge from the Army. She stated, in effect, she was within 180 days of active service, and she was requesting a discharge due to failure to adapt to the military. • she had distracting circumstances going on at home • she had to go to court regarding her rape allegation against a Naval recruiter and she went AWOL to deal with this situation • she was under a lot of pressure and stress, she felt like she was losing her mind • she needed help, she was not mentally ready • she felt very unhappy, lonely, and depressed 7. A Commander’s Action Summary shows, on 17 March 2001, the applicant arrived at Company C, 187th Medical Battalion, FSH, TX, to attend training for MOS 91T (Animal Care Specialist). She went AWOL from 12 to 19 May 2001 and she was informed that she was being recommended for a Company Grade Article 15. She started class on 21 May 2001 and on 24 May 2001, she was admitted to Laurel Ridge Hospital after stating she was going to commit suicide due to her personal problems. She was allegedly raped prior to entering the military, and the trial was scheduled to take place in Orlando, FL on 5 July 2001. Prior to hospitalization, she sought counseling with the chaplain. Despite her desire to remain in the military, her therapist, as well as military “CBHS” personnel, strongly recommend that she be separated from the military as quickly as possible. 8. On 29 June 2001, the applicant’s commander notified the applicant action was being initiated to separate her from the Army under the provisions of chapter 11, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), due to entry level separation (ELS). The specific reason cited for the proposed action was the applicant had demonstrated character and behavior characteristics not compatible with satisfactory continued service, along with failure to respond to counseling. She was advised of her rights. 9. On 29 June 2001, the applicant acknowledged notification, acknowledged she had been advised of her rights and was provided an opportunity to consult with counsel. She requested further counsel and declined to submit statements in her own behalf. 10. On 29 June 2001, the applicant’s commander recommended approval. The commander cited the specific factual reason(s) for separation was the applicant had demonstrated character and behavior characteristics not compatible with satisfactory continued service, along with failure to respond to counseling 11. On 29 June 2001, the appropriate authority approved the applicant's separation under the provisions of AR 635-200, chapter 11, due to ELS, with uncharacterized service. 12. On 3 July 2001, the applicant was discharged. Her DD Form 214 shows she was discharged in accordance with AR 635-200, chapter 11, due to Entry Level Performance and Conduct, with uncharacterized service. She completed 6 months and 2 days of net active service this period and she was assigned Separation Code JGA and Reentry Code 3. 13. AR 635-200, chapter 11, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an ELS. 14. Her record is void of documentation showing she was treated for an injury or an illness that warranted entry into the Disability Evaluation System (DES). Additionally, there is no indication that she was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 15. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 16. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 17. Title 38, CFR, Part IV is the VA's schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 18. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of her uncharacterized discharge, due to entry level performance and conduct to an honorable medical discharge. She contends that sexual assault/harassment, PTSD and other mental health mitigate her separation. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: • The applicant enlisted in the Regular Army on 2 January 2001. • Between 2 April and 29 June 2001, the applicant was counseled on five separate occasions. She was counseled on: • 2 April 2001, for failure to be at her appointed place of duty at the time prescribed for missing make-up physical training on 30 March 2001 • 18 April 2001, for having government property or personal property unsecure • 22 May 2001, regarding her request for separation • 19 May 2001, for being absent without leave (AWOL) from 12 to 19 May 2001 • 29 June 2001, regarding separation action under chapter 11, AR 635-200 • On 20 May 2001, the applicant requested discharge from the Army due to failure to adapt to the military. • On 29 June 2001, the applicant’s commander notified the applicant action was being initiated to separate her from the Army under the provisions of chapter 11, AR 635-200, due to entry level separation (ELS). The applicant was discharged 3 July 2001. 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, her ABCMR Record of Proceedings (ROP), DD 214 and documents from her service record and separation process. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. This applicant asserts that she was sexually assaulted at the age of 14 by a Naval recruiter and suffers from PTSD due to this situation. She also noted developing additional mental health disorders during basic training and AIT and that she spent time in a mental ward. She is asserting that PTSD, MST and other mental health mitigate her discharge and that she needs an honorable medical discharge to receive desired benefits in her state. Per the applicant’s service record she requested to discharge due to failure to adapt to the military and cited numerous reasons why, to include distracting circumstances at home, having court regarding her rape allegations against a Naval recruiter, pressure and stress, not feeling mentally ready, and feeling unhappy, lonely and depressed. d. Her time in service predates consistent use of electronic health records (EHR) by the Army, and the applicant did not provide any other medical or mental health records from her time in the service. Her service record included her enlistment medical examination, and at that time the applicant denied any mental health concerns. The only medical/mental health information is gleaned from her self-report and leadership memorandums during her separation proceedings. Her service record indicated that she was admitted to Laurel Ridge Hospital after stating she was going to commit suicide due to her personal problems. The Commander’s action summary also stated the applicant sought counseling with the chaplain, and that despite her desire to remain in the military, her therapist, as well as military “CBHS” personnel, strongly recommend that she be separated from the military as quickly as possible. In another memorandum between command regarding her separation, it stated that the reason for the action recommended was “The soldier has demonstrated character and behavior characteristics not compatible with satisfactory continued service, along with failure to respond to counseling.” The same document stated no mental status exam was included in the packet. e. Applicant’s EHR since her time in service shows no mental health encounters with the VA. No compensation and pension (C&P) evaluation is available for review. However, her records do reflect that she is 100% service connected for PTSD. Community Health care Summaries and Documents available through JLV also reflect that the applicant has been diagnosed with PTSD, as well as ADHD, depression, anxiety, insomnia, and Bipolar I, however minimal information is available outside of the diagnoses. Again, no additional information was submitted by the applicant. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor there is evidence she likely had a mitigating condition present during her time in service and is now service connected for a mitigating condition. The applicant has a history of sexual assault, but it’s unclear if this meets the intent of mitigating experiences. However, the applicant did not have any misconduct charges that would need to be mitigated. 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 a mitigating experience and conditions. (2) Did the condition exist or experience occur during military service? Yes and No. The applicant is 100% service connected for PTSD. The mitigating experience claimed appears to have occurred before the applicant was enlisted, though it is unclear if it occurred while she was a recruit. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts a mitigating experience (MST) and has been diagnosed with a service-connected mitigating condition (PTSD). While the applicant reported MST on her application, it appears evident she was referring to a sexual assault that predated her service. At this time, there is no information to suggest she was assaulted during her time in service. However, through self-report and the information gleaned from her service record, it appears evident that her pre-existing trauma was exacerbated by her service and led to a decompensation in her mental state. The applicant also asserted “other mental health.” Medical records from her time in service were not made available, however through self-report and memorandum from command, it appears evident that some depression and anxiety were also present during her service, though no diagnosis can be found. Since her time in service, the minimal records available indicate she also now holds other mental health diagnoses, none of which are service connected, though some of which remain consistent with her presentation while in service. g. She received an uncharacterized discharge given her length of service (less than 180 days) and because she requested to be discharged. The applicant did have numerous counseling secondary to misconduct, though never received non judicial punishment. If there were misconduct charges to mitigate, this advisor would recommend an upgrade to her discharge given the service-connected PTSD, sexual trauma reportedly involving a recruiter while she was a teenager, and the evident decompensation in mental health during her service. Although a unique circumstance, mitigation is still supported and an upgrade to Honorable is recommended, with a narrative reason for separation change to Secretarial Authority. h. Of note, there is insufficient evidence to support a referral to IDES process at this time. Her service records state she was not immediately responding to treatment (hence the recommendation to support her discharge), however this would not have met the medical readiness decision point after only a brief trial of treatment. The route command took to separate appears proper and equitable. Also, while the applicant has received 100% service connection for PTSD, the VA examinations are based on different standards and parameters; they do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, a VA disability rating does not imply failure to meet Army retention standards at the time of service. A subsequent diagnosis of PTSD through the VA is not indicative of an injustice at the time of service. Furthermore, even an in-service diagnosis of PTSD is not automatically unfitting per AR 40-501 and would not automatically result in medical separation processing. 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 shows the applicant received an uncharacterized discharge since separation action was started while she was still in initial entry training and had not completed training for award of an MOS. a. The Board noted that the applicant self-reported MST. It appears she was referring to a sexual assault that predated her military service as there is no evidence to suggest she was assaulted during her time in service. However, her self-reporting and the information in her service record does not mean that her pre-existing trauma was exacerbated by her service. The Board reviewed and was not persuaded by the medical advisor’s finding that her unique circumstance support mitigation or that an upgrade to honorable is recommended. The Board determined that there is no information she was assaulted during her time in service and that he alleged assault is preexisting. b. The Board further agreed that there is insufficient evidence to support a referral to IDES process. Her service records state she was not immediately responding to treatment (hence the recommendation to support her discharge), however this would not have met the medical readiness decision point after only a brief trial of treatment. Although she receives 100% service connection for PTSD, the VA examinations are based on different standards and parameters; they do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, a VA disability rating does not imply failure to meet Army retention standards at the time of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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. 8/15/2023 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11, provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for ELS under the provisions of this chapter. This policy applies to Soldiers in the Regular Army, ARNG, and USAR who have completed no more than 180 days of continuous active duty or IADT or no more than 90 days of Phase II under a split or alternate training option. d. Section II (Terms) of the Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. For ARNG and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II of Advanced Individual Training. 3. 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, on those conditions or experiences. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 5. Title 10, U.S. Code, Chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command Referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. e. Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 7. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 9. Title 38, U.S. Code, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered, or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 11. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//