IN THE CASE OF:  
 
  BOARD DATE:  27 July 2023 
 
  DOCKET NUMBER:  AR20230000257 
 
 
APPLICANT REQUESTS:  Reconsideration of her previous request for correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her uncharacterized service was honorable and a personal appearance before the Board via video/telephone.  
 
APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD:   
 
DD Form 149 (Application for Correction of Military Record) 
 
FACTS:   
 
1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130011351 on 20 February 2014.  
 
2.  The applicant states she was sexually assaulted in the barracks for weeks while suffering from bronchitis. She spoke to her commander about the incident and was told the assailant was going to be her advanced individual training (AIT) instructor. No one helped her; they just simply discharged her. She was discharged unfairly due to the assault and wishes to receive an honorable characterization of service and all benefits. On her DD Form 149, the applicant indicates sexual assault/harassment is related to her request. 
 
3.  On 17 August 1990, the applicant enlisted in the U.S. Army Reserve (USAR). She entered initial active duty for training (ADT) on 31 August 1990. Upon completion of basic training, she was assigned to Fort Dix, NJ for AIT.  
 
4.  On 2 November 1990, the applicant completed a memorandum waiving her option for a separation medical examination. An individual sick slip shows she was treated for bronchitis from 13 November through on or about 15 November 1990.  
 
5.  A report of mental health evaluation memorandum shows the applicant’s commander was informed on 21 November 1990, by the Community Mental Health Service, that the applicant did not have the adequate motivation and comping resources needed to 
complete basic training. The examining officer strongly recommended the applicant be considered for expeditious separation, as the applicant reported suicidal ideation without intent. She was diagnosed with adjustment disorder with depressed mood. 
 
6.  On 21 November 1990, the applicant's immediate commander notified the applicant that she was initiating actions to separate her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, for entry level status performance and conduct. As the specific reason, the commander cited the applicant’s adjustment disorder with depressed mood. She further noted the applicant did not appear to have the adequate emotional and coping resources needed to complete AIT. 
 
7.  Subsequently, the applicant acknowledged receipt of the separation notification on the same date. She waived her right to consult with counsel and elected not to make any statements in her own behalf.  
 
8.  On 24 November 1990, the applicant's commander formally recommended her separation from service, under the provisions of Army Regulation 635-200, Chapter 11.  
 
9.  On 27 November 1990, the separation authority approved the recommended discharge and noted the applicant should not be transferred to the Individual Ready Reserve.  
 
10.  On 30 November 1990, the applicant was released from active duty and discharged from the USAR. Her DD Form 214 shows she was separated under the provisions of Army Regulation 635-200, paragraph 11-3a, based on entry level status performance and conduct. She was credited with completing 3 months of net active service this period, her service was uncharacterized.  
 
11.  Soldiers are considered to be in an entry-level status when they are within their first 180 days of active-duty service. The evidence of record shows the applicant was in an entry-level status at the time of her separation. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It simply means the Soldier was not in the Army long enough for his or her character of service to be rated as honorable or otherwise.  
 
12.  On 20 February 2014, the ABCMR considered the applicant's request for upgrade of her discharge. The Board determined after careful consideration of her military records and all other available evidence that she was properly discharged and denied her request.  
 
13.  On 30 September 2022, in the processing of this case the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports pertaining to the applicant.  
 
14.  In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance.  
 
15.  MEDICAL REVIEW:  
 
    a.  Background: The applicant is requesting a reconsideration of her previous request for correction of her DD Form 214 to show her uncharacterized service was honorable. She contends that sexual assault/harassment 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 USAR on 17 August 1990.  

• On 21 November 1990, the applicant's immediate commander notified her that she was initiating actions to separate her under AR 635-200, Chapter 11, for entry level status performance and conduct. As the specific reason, the commander cited the applicant’s adjustment disorder with depressed mood. She further noted the applicant did not appear to have the adequate emotional and coping resources needed to complete AIT.  

• On 30 November 1990, the applicant was released from active duty and discharged from the USAR under AR 635-200, paragraph 11-3a, based on entry level status performance and conduct. Her service was uncharacterized.  

• On 20 February 2014, the ABCMR considered the applicant's request for upgrade of her discharge and determined that she was properly discharged and denied her request.  


 
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) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration.  
This applicant asserts that she was sexually assaulted in the barracks for weeks while sick/recovering and when she spoke with her commander about the incident, she was informed the assailant was going to be her AIT instructor. She contends that no one helped her, but instead just discharged her unfairly. Due to her brief length of service 
(less than 180 days), she received an uncharacterized characterization of service. However, she is requesting an honorable discharge, with MST as her mitigating experience.  
    d.  On 2 November 1990, the applicant completed a memorandum waiving her option for a separation medical examination but did complete a mental health evaluation. On a memorandum dated 21 November 1990, the provider noted that the applicant did not have adequate motivation and coping resources needed to complete basic training, that she had reported suicidal ideation without intent, and was diagnosed with adjustment disorder with depressed mood. The provider recommended she be “considered for separation and that this be accomplished as expeditiously as possible.” An individual sick slip from her service record shows she was treated for bronchitis from 13 November through on or about 15 November 1990, which would be the time frame she attests to being assaulted. Her time in service predates electronic health records (EHR), and the applicant did not provide any other medical or mental health records from her time in the service. A request for information from CID did not produce any records or data about the applicant’s asserted MST.  
    e.  In review of the events above, it appears that the applicant was already being considered for separation prior to getting bronchitis and being assaulted, as she signed the memo waiving her right to an evaluation on 2 November and was on quarters 13-15 November. There is no counseling statement for why she was sent to behavior health for this evaluation, but this suggests there were known concerns. However, given the series of asserted events, an adjustment disorder with depressed mood and suicidal ideation may have been her response to the assault. And these findings were the reasons given in the separation counseling. In her previous application to ABCMR, she stated that she never told anyone that she was attacked so it’s unclear at this time who could have helped, given she asserts “no one helped me, they just discharged me.” It appears likely her command was responding to her mental health issues only when they discharged her, and not an asserted assault.   
    f.  Applicant’s EHR reflects that she began engaging in care at the VA in 2013, with her immediate focus being on the MST. In an encounter 24 May 2013, the applicant detailed multiple incidents of sexual harassment and assault and indicated that she did not tell but instead stated she would kill herself unless discharged. She was initially diagnosed with PTSD - chronic, major depressive disorder - recurrent, and OCD traits. She was seen for a compensation and pension (C&P) evaluation on 9 June 2014, and was diagnosed with PTSD secondary to MST, with mention of significant OCD traits. The applicant is now 50% service connected for PTSD. She has continued to engage in psychiatric and therapeutic care. She has held several other diagnoses to include generalized anxiety disorder, unspecified anxiety, suicidal ideation, cluster b traits, and rule out of panic attacks with agoraphobia.    
    g.  Based on the available information, it is the opinion of the ARBA BH Advisor there is evidence she had a mitigating experience occur during her time in service and now is service connected for a mitigating condition. However, the applicant did not have any misconduct that would need to be mitigated. Her separation process was previously found to be proper.  
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. She has also been diagnosed with a mitigating condition.  
 
    (2)  Did the condition exist or experience occur during military service? Yes, the experience occurred during her time in service. The condition was not diagnosed, per records available, for many years after her discharge, however PTSD has since been service connected.  
 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts to a mitigating experience (MST) and has been diagnosed with a service-connected mitigating condition (PTSD) secondar to that experience. However, per available records, the applicant was recommended for discharge after reporting suicidal ideation and being diagnosed with an adjustment disorder with depressed mood and never reported her MST. She received an uncharacterized discharge given her length of service (less than 180 days). If there were misconduct to mitigate, this advisor would recommend an upgrade to her discharge given the service-connected PTSD secondary to MST. 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. 
 
 
BOARD DISCUSSION:  
 
1.  The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant.  
 
2.  The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, her performance issues, and the reason for her separation. The Board considered the applicant's MST claim and the review and conclusions of the ARBA BH Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence 
of in-service mitigating factors. Although the Board concurred with the conclusion of the medical advising official regarding the occurrence of a mitigating experience and the presence of a mitigating mental health diagnosis, the Board found the applicant’s entry-level separation was properly executed and was the appropriate course of action given her record of performance in training.  Based on a preponderance of evidence, the Board determined the applicant’s uncharacterized service is not in error or unjust. 
 
 
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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130011351 on 20 February 2014. 

  8/1/2023

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 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, 
with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute.  
 
2.  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 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.  
 
3.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  
 
a.  An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member'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.  A general discharge was a separation from the Army under honorable conditions. The regulation authorized separation authorities to issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
 
c.  Paragraph 3-9 (Uncharacterized Separations). Separation authorities were to describe a separation as entry-level, with service uncharacterized, if commanders-initiated separation processing while a Soldier was in entry-level status. The regulation additionally specified the Secretary of the Army, or designee, could grant a Soldier an honorable character of service, on a case-by-case basis, when clearly warranted by unusual circumstances involving personal conduct and performance of military duties.  
 
(1) Effective 28 January 1982, the Department of Defense (DOD) established "entry-level status" in DOD Directive 1332.14 (Enlisted Administrative Separations).  
 
(2) For active-duty service members, entry-level status began on the member's enlistment and continued until he/she had served 180 days of continuous active duty.  
 
d.  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 an 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 entry-level separation under the provisions of this chapter.  
 
e.  The character of service for Soldiers separated under this provision would normally be honorable but would be uncharacterized if the Soldier was in an entry-level status. An uncharacterized discharge is neither favorable nor unfavorable; in the case of Soldiers issued this characterization of service, an insufficient amount of time would have passed to evaluate the Soldier's conduct and performance.  
 
4.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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.  
 
5.  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.  
 
6.  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.  
 
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