1. Applicant's Name: a. Application Date: 29 June 2019 b. Date Received: 3 July 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of an uncharacterized discharge to honorable or general (under honorable conditions). The applicant's discharge characterization was improper because it violated several Army regulations. Army officials violated the applicant's right under Army Regulation 40-400 to have the results of the EPSBD exam reviewed. Army officials failed to consider the requirements of the applicant's MOS when determining whether the applicant should be retained under Army Regulation 40-400. Even with low bone density, Army officials never considered whether the applicant could nevertheless complete the MOS duties as a dental specialist-duties that did not require significant physical exertion and were largely administrative. Army officials discharged the applicant, despite the fact that the applicant met the Army's standards for retention under Army Regulation 40-501. Counsel states, had the applicant been afforded the procedural safeguards guaranteed to the applicant under these Army Regulations, the applicant likely would not have been discharged at all. At the very least, the applicant would not have been discharged, while in ELS, and thus would have received an honorable discharge characterization. The applicant's uncharacterized discharge was also inequitable. The applicant was discharged in ELS and received an uncharacterized discharge because of an injury the applicant suffered during the Army's ill- advised and soon-scaled back experimental training program. The uncharacterized discharge has a substantial, inequitable effect on the applicant because DoD effectively treats an uncharacterized discharge as dishonorable and therefore, disqualifying, the applicant for purposes of receiving expedited citizenship under the MAVNI Program. Accordingly, the applicant's ability to become a citizen-and the applicant's related ability to care for a special needs son and keep the family together in the U.S., is jeopardized through no fault of the applicant's own. While one clear purpose of an uncharacterized discharge is to spare the service member from the adverse consequences of a dishonorable discharge, in the applicant's case it has a clear punitive impact through its effect on citizenship prospects. The Army failed to afford the applicant the same right to recover from the injury that was afforded to similarly situated Soldiers, an injury caused by the Army's experimental training program. This disparate treatment may not have been accidental. Army officials knew that the applicant was in the MAVNI Program and that fellow injured Soldiers were not. Despite these inequitable circumstances, the applicant would still like to reenlist if able to become a citizen, which is likely the only way service is possible because of the indefinite suspension of the MAVNI Program. Since discharge, the applicant has continued to serve the community in other ways, such as volunteering with the organization "Helping Hands" and promoting the missions of various social impact organizations through professional services. Counsel further details the contentions in an allied legal brief. In a personal appearance hearing conducted at Arlington, VA on 7 October 2019, and by a 5-0 vote, the Board determined that the characterization of service was improper. Therefore, the characterization not being proper and equitable, the Board granted relief in the form of an upgrade of the applicant's characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Failed Medical/Physical/Procurement Standards / AR 635-200, Paragraph 5-11 / JFW / RE-3 / Uncharacterized b. Date of Discharge: 3 November 2018 c. Separation Facts: (1) Date Entrance Physical Standards Board (EPSBD) convened: 17 September 2018 (2) EPSBD Findings: The findings of the evaluating physicians indicate the applicant was medically unfit for appointment or enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the condition existed prior to service. The applicant was diagnosed with: Osteopenia. (3) Date Applicant Reviewed and Concurred with the Findings, and Requested Discharge without Delay: On 9 October 2018, the applicant disagreed with the proceedings because her condition did not exist prior to service and requested her case be returned to the medical approving authority for reconsideration. (4) Separation Decision Date / Characterization: 24 October 2018 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 May 2018 / 6 years b. Age at Enlistment / Education / GT Score: 28 / Bachelor's Degree / 116 c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 5 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: EPSBD findings as described in previous paragraph 3c. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; with allied legal brief and all listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, she has continued to serve her community by volunteering with the organization "Helping Hands" and promoting the missions of various social impact organizations through her professional services. 7. REGULATORY CITATION(S): Army Regulation (AR) 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty or active duty training or initial entry training will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of AR 40-501, Chapter 3. The characterization of service for Soldiers separated under this provision of the regulation will normally be honorable. However for Soldiers in entry-level status, it will be uncharacterized. AR 635-200 states that a Soldier is in an entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. AR 40-400 states that if the member disagrees with the medical findings and requests reconsideration, the medical evidence will include copies of medical records/statements from physicians. 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of her uncharacterized discharge to honorable or general (under honorable conditions). The applicant's record of service, the issues and documents submitted with her application were carefully reviewed. The proceedings of the EPSBD revealed the applicant had a medical condition which was disqualifying for enlistment and existed prior to entry on active duty. These findings were approved by competent medical authority. The applicant disagreed with the proceedings because she believed her condition did not exist prior to service. She therefore requested that her case be returned to the medical approving authority for reconsideration. However, the applicant's service record is void of any reconsideration proceedings. The fact that there is no further documentation from a reviewing medical professional in the discharge record is an indication of procedural irregularity. Further, the uncharacterized description of service accurately reflects the applicant's overall record of service. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier's military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. The applicant contends that other Soldiers with similar conditions were not discharged and had she been afforded the same opportunity, she would not have received an uncharacterized discharge. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. Further, AR 635-200 states that a Soldier is in an entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. The evidence of the record reflects at the time the EPSBD, convened, she had 126 days of continuous active duty service, and therefore, the applicant was in an entry-level status. AR 635-200 also provides, except in cases of serious misconduct, that a Soldier's service will be uncharacterized when separated in entry-level status. The applicant states the Army placed her in an experimental basic combat training (BCT) program during which the recruits marched to all training, rather than taking bus transportation like other recruits at BCT during this period. The applicant presented an Army article written by her BCT company commander detailing the program. The applicant contends that if she had been in another BCT company, and been allowed to work up to the long distances and heavy weights they carried from Day 1, she would have made it through BCT. The applicant contends the Army failed to consider her MOS when considering to separate her from the Army. However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with her overall service record. Further, at the time of the applicant's separation proceedings, the applicant had not been awarded an MOS. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statements provided with the application speak highly of the applicant. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The applicant contends that an upgrade of her discharge will allow her expedited citizenship and to obtain better employment to care for her child. However, the Board generally does not grant relief for the sole purpose of citizenship considerations or for gaining employment or for enhancing employment opportunities. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): Timeline (2 pages) Sworn Statement (3 pages) Resume (1 page) b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 7 October 2019, and by a 5-0 vote, the Board determined that the characterization of service was improper. Therefore, the characterization not being proper and equitable, the Board granted relief in the form of an upgrade of the applicant's characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190009761 5