IN THE CASE OF: BOARD DATE: 11 October 2023 DOCKET NUMBER: AR20230003450 APPLICANT REQUESTS: an upgrade to her characterization of service from uncharacterized to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 14 December 2022 * United States Postal Service employee detail report, 14 December 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, she was sexually harassed and made to "do things" while in basic training which were not of her character. She was forced to take blame for instances and felt she had no control. She did things for her harasser to keep him out of trouble and got reprimanded. She knows she can never prove her case simply because there are men who will deny it. a. While in basic training she fractured her bones but was told it was shin splints and treatment was ignored. She knows she had physical ailments and would have most likely been discharged. b. She now lives with pain everyday and spends money out of her own pocket for something that could have been prevented. It was her dream to be in the military and she would have never left, this dream was destroyed over a boy. She was told she was the flirt and she was the one encouraging the behavior. c. She has no Veteran Affairs rating and has never tried to gain benefits from the service, since she was not in very long. When reviewing her Standard Form 50 with the United States Postal Service she saw her discharge rating, which she states is unjust and makes her look like she is less than. She is an honorable postmaster and someone to the people of her community and home. 3. The applicant enlisted in the Regular Army on 7 August 1996, for a period of 6 years. 4. A DA Form 2-1 (Personnel Qualification Record) shows the highest rank she obtained was the rank/grade of private/E-2 (PV2) with a date of rank of 7 August 1996. 5. On 30 September 1996, the applicant accepted non-judicial punishment 30 September 1996, for failure to obey a lawful, by buying with intent to distribute tobacco products while on sickcall. Her punishment was 14 days restriction, 14 days extra duty and forfeiture of $228.83. 6. Multiple statements in the applicant's official military personnel file show on 7 November 1996, there was an incident involving herself and other Soldiers, where they were caught at the hospital, out of their uniform in civilian clothing. 7. On 13 November 1996, the applicant received formal counseling for her inability to follow directions and abide by the rules and regulations on 7 November 1996, she was being initiated for separation proceedings under Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 11, for entry level performance and conduct. 8. On 15 November 1996, she was notified of her commanders intent to initiate separation action under the provisions of AR 635-200, Chapter 11, for entry level status performance and conduct. As the specific reasons, the applicant had demonstrated character and behavior characteristics not compatible with satisfactory continued service. a. If separation is approved, she would receive an entry level separation with uncharacterized service and not be permitted to reenlist within 2 years from the date of separation without an approved waiver. b. She had the right to consult with counsel, submit statements in her own behalf, obtain copies of documents that would be sent to the separation authority, request a separation physical, and/or waive the rights in writing. 9. On the same date, she acknowledged notification of the proposed separation. She understood if approved she would receive an entry level separation with uncharacterized service. She did not desire to consult with counsel, nor did she desire to make statement(s) in her own behalf. She did not request a separation physical or medical examination. 10. On 21 November 1996, the separation authority approved the recommended separation, with uncharacterized service. 11. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged on 27 November 1996, under the provisions of AR 635-200, Chapter 11, by reason of entry level performance and conduct, in the rank/grade of PV2. Her service was uncharacterized, with separation code JGA and reentry code 3. She completed 3 months and 21 days of net active service. 12. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge within that Board’s 15-year Statute of Limitations 13. Regulatory guidance provides, administrative separation under the provisions of Chapter 11 applies to Soldiers in an entry level status who demonstrated they cannot or will not adapt socially or emotionally to military life. The character of service for members separated under the provisions of this chapter is uncharacterized. 14. The Board should consider the applicant's overall military service and statement in accordance with the published equity, injustice, or clemency determination guidance. 15. MEDICAL REVIEW: Medical Advisor: MAJ, Psy.D., ABPP (Licensed Psychologist) a. Background: The applicant is requesting a change to the characterization of her service from uncharacterized to honorable. The applicant asserts PTSD and sexual assault/sexual harassment as mitigating factors in her discharge. 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 7 August 1996. * On 30 September 1996, the applicant accepted non-judicial punishment (NJP) for failure to obey a lawful order, by buying with intent to distribute tobacco products while on sick call. * On 13 November 1996, the applicant received formal counseling for her inability to follow directions and abide by the rules and regulations on 7 November 1996. She was being initiated for separation proceedings under AR 635-200, Chapter 11, for entry level performance and conduct. She was official notified by her commander of his intent on 15 November 1996. As the specific reasons, the applicant had demonstrated character and behavior characteristics not compatible with satisfactory continued service. The separation was approved. * She was discharged on 27 November 1996, under AR 635-200, Chapter 11, by reason of entry level performance and conduct. Her service was uncharacterized, with separation code JGA and reentry code 3. She completed 3 months and 21 days of net active service. 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), US Postal Service employee detail report, DD Form 214, as well as documents from her service record and separation. 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. d. The applicant asserts that she was sexually harassed and was made to do things for her harasser that got her reprimanded. She asserts no one listened. She also asserts she had physical ailments that she believes likely would have had her discharged. She is asking for her name and integrity to be intact. She is requesting an upgrade in her discharge from uncharacterized to honorable to help remedy this. Per her records, she engaged in several behaviors that led to article 15s (leaving with other female soldiers to go to the mall when they were not to leave post, selling/distributing tobacco products at sick call, and potentially one other event leading to an article 15 at a previous unit), however she received an uncharacterized discharge. The applicant supplied her US Postal Service employee detail report that does list her service as “Less than honorable,” which appears to be an inaccurate description of her discharge and seemingly the catalyst for her application. e. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. Her service record and supporting documents did not contain her service treatment records (STR) and no other health records from her time in service were provided to substantiate her claim. Separation records reflect she was offered and declined a separation physical or medical exam. A document in her separation file also does reference stress fractures in her shins that she was recovering from, and therefore was being held over/recycled into another training class. There was no provided evidence, outside of self-report, of sexual harassment nor physical conditions so severe that that she would have been discharged for medical reasons. f. Per the applicant’s VA EHR, she is not service connected. She has not been engaged in any mental health care through the VA and she holds no mental health diagnoses with the VA. However, given the characterization of her discharge, she would not typically be eligible for most VA benefits. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health diagnoses, nor mental health encounters. No other medical records were provided. g. It is the opinion of the Agency Behavioral Health Advisor that there is no evidence outside of self-report that the applicant had mitigating experiences. However, it is not uncommon for there to be no record of sexual harassment nor assault. There is also no evidence the applicant was experiencing any mitigating mental health conditions. However, per Liberal Consideration, her contention is sufficient to warrant the board’s consideration. 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 sexual harassment mitigates her discharge. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends the mitigating experiences occurred during her time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts sexual harassment as a mitigating factor in her discharge. There are numerous points to this opine. First, the only evidence of sexual harassment is the applicant’s assertion in her application. However, per Liberal Consideration guidance, her contention is sufficient to warrant the boards consideration. Second, there is no evidence of a mitigating mental health condition during her time in service, nor since nor is there any evidence of a trauma response to her asserted harassment. Third, her misconduct would only be partially mitigated. There is a nexus between avoidance behaviors and sexual harassment, particularly to escape or avoid a perpetrator. Hence, her leaving post (presumably during her duty day) is potentially mitigated by her assertion. However, there is no nexus between disobeying a direct order and distributing tobacco products during sick call, and a typical response to sexual harassment. That said, the applicant asserts she was made to do things by her harasser. She also asserts no one listened to her, suggesting she tried to reveal what had really occurred. However, there is no counseling statements nor evidence that she did report the harassment, nor did she report that she was made to engage in these behaviors. In the Record of Proceedings, she in fact denied there being “matters in defense, mitigation, and/or extenuation.” Fourth, uncharacterized discharges are not punitive or negative. However, given misconduct could be partially mitigated by a response to sexual harassment, the board should consider an upgrade to Honorable, with a narrative reason for separation change to Secretarial Authority. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding no evidence outside of self-report that the applicant had mitigating experiences to include insufficient evidence the applicant was experiencing any mitigating mental health conditions. The Board noted the opine found no evidence of a mitigating mental health condition during her time in service, nor since nor is there any evidence of a trauma response to her asserted harassment. Liberal consideration was given by the Board to the effect that there is a nexus between avoidance behaviors and sexual harassment, particularly to escape or avoid a perpetrator. 2. However, the Board agreed with the opine that there is no nexus between disobeying a direct order and distributing tobacco products during sick call, and a typical response to sexual harassment. The Board determined the governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. Evidence in the records shows the applicant did not complete her training, nor did she receive an military occupational specialty (MOS), she was discharged for entry level performance and conduct. As such, her DD Form 214 properly shows her service as uncharacterized. In addtion, the Board determined based on the medical review that correction to the applicant’s narrative reason is warranted. Therefore, the Board granted partial relief to show her narrative reason as Secretarial Authority. 3. An uncharacterized discharge is not derogatory; it is recorded when a Soldier has not completed more than 180 days of creditable continuous active duty prior to initiation of separation. It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated as honorable or otherwise. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period ending 27 November 1996 to show in: Item 28 (Narrative Reason for Separation) Secretarial Authority. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to an upgrade to her characterization of service from uncharacterized to honorable. 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. 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. 3. Army Regulation 635-200, in effect at the time, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. 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 that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life. Entry level status is defined as the first 180 days of continuous active duty. It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized. d. Section II (Terms): (1) Character of service for administrative separation - A determination reflecting a Soldier’s military behavior and performance of duty during a specific period of service. The three characterizations are honorable, general (under honorable conditions), and under other than honorable conditions. The service of Soldiers in entry-level status is normally described as uncharacterized. (2) Entry-level status - For Regular Army Soldiers, entry-level status is 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. 4. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Record (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post-Traumtic Service Disorder; 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. 5. 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 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003450 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1