1. Applicant's Name: a. Application Date: 21 October 2019 b. Date Received: 20 November 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is uncharacterized. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, an undetected pregnancy led to the discharge. b. Board Type and Decision: In a records review conducted on 12 August 2022, and by a 5 - 0 vote, the Board determined the RE-code was inequitable since that applicant was pregnant and should have never shipped to BCT. Therefore, the Board voted to recommend relief with issuance of a new NGB Form 22a, with an upgrade of the re-entry code to RE-1. The Board's recommendation was forwarded to the Chief, National Guard Bureau, Pennsylvania Military Department, to the Adjutant General, State of Pennsylvania, under the provisions of 10 USC § 1553, for final approval. The Board determined the characterization and narrative reason were proper and equitable and voted not to change them. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Defective Enlistment or Reenlistment / NGR 600-200, Paragraph 6-35d(3) / NA / RE-3 / Uncharacterized b. Date of Discharge: 15 December 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 December 2010, the discharge was initiated to separate the applicant for defective enlistment agreement. The applicant was unable to ship to IADT within the allowable period due to pregnancy. The applicant was informed that the National Guard needed a letter from the applicant doctor stating the applicant was pregnant and an expected due date. (2) Basis for Separation: The applicant on 20 November 2010, elected to be discharged by pregnancy under AR 135-178, paragraph 8-26h, and understood that this option is not available following delivery of the child or termination of the pregnancy. (AR 135-178, Paragraph 6-3 is the correct paragraph for discharges relating to pregnancy). (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 December 2010 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 September 2010 / 8 years (ARNG) b. Age at Enlistment / Education / GT Score: 21 / Bachelor's Degree / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 2 months, 24 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: Memorandum, subject: Initiation of Discharge Action, on 8 December 2010, reflects discharge action had been initiated to separate the applicant for Defective Enlistment Agreement. The applicant was unable to ship to IADT within the allowable time due to pregnancy. There is no evidence reflecting the applicant enlistment was defective. Memorandum, subject: Election of Options Regarding Pregnancy, dated 20 November 2010 reflects the applicant was given the options regarding a pregnancy. On 20 November 2010, the applicant elected discharge/resignation by pregnancy under AR 135-178, paragraph 8-26h. (AR 135-178, Paragraph 6-3 is the correct paragraph for discharges relating to pregnancy) i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, After visit Summary-2, NGB 22 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and Command Sergeant Major Program. Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. Paragraph 6-35d(3) defers to AR 135-178, chapter 7. e. Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. (1) Chapter 6 establishes policy and prescribes procedures for separating Soldiers for the conscience of the Government. Paragraph 6-3, Pregnancy, provides when it is determined that a Soldier became pregnant after enlistment, the Soldier will be allowed to elect to be discharged when the Soldier has not entered on initial active duty for training (IADT) or ever completed IET and the Soldier has not incurred an active-duty obligation because of a federally subsidized program. Soldiers separated under this chapter will be characterized as honorable unless the Solider is in an entry-level status (ELS). A Soldier is in an ELS if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. (2) Chapter 7 establishes policy and prescribes procedures for separating members for defective enlistments or reenlistment. Soldiers separated under this chapter will be characterized as honorable unless the Solider is in an entry-level status (ELS). A Soldier is in an ELS if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant's service AMHRR does not contain the complete facts and circumstances concerning the events which led to the applicant discharge from the Army. The applicant's record does contain a properly constituted NGB Form 22 (National Guard Bureau Report of Separation and Record of Service). The NGB Form 22 indicates the applicant was discharged under the provisions of NGR 600-200, 6-35d(3) Defective enlistment or reenlistment. A Soldier is in an ELS for the first 180 days of continuous active duty. The purpose of the entry- level status is to provide the Soldier a probationary period. Army Regulation 635-200 also provides, except in cases of serious misconduct that a Soldier's service will be uncharacterized when the separation is initiated while the Soldier is in ELS. 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. Further, an honorable discharge is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The applicant contends an undetected pregnancy led to the discharge. If the applicant desires a personal appearance hearing, it is the applicant's responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. There was no misconduct that was used for the basis of separation, rather, the discharge was based on applicant being pregnant during their entry-level status, and therefore there was no mitigation based on applicant's medical conditions. (2) Did the condition exist, or experience occur during military service? N/A (3) Does the condition or experience excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): The applicant contends an undetected pregnancy led to the discharge. The Board determined that the discharge characterization and narrative reason was proper and equitable, as the applicant was pregnant prior to enlistment, confirms the applicant's contention states it was undetected. However, since there was no misconduct to note, the Board voted that an upgrade to the RE-code was proper, should the applicant desire to reenlist. This recommendation was forwarded to the Adjutant General's Office of Pennsylvania for final determination. c. The Board determined the RE-code was inequitable since that applicant was pregnant and should have never shipped to BCT. Additionally, the applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because there were no mitigating factors for the Board to consider, as the applicant was discharged for failing medical procurement standards due to pregnancy at the time of entry and Uncharacterized is proper and equitable. 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. (2) The Board voted not to change the applicant's reason for discharge, as the reason the applicant was discharged was both proper and equitable. (3) The Board voted to upgrade the RE-code to RE-1 since the applicant should not be penalized and require a waiver for being pregnant. This recommendation was forwarded to the Adjutant General's Office of Pennsylvania for final determination. 10. BOARD ACTION DIRECTED: a. Issue a New NGB Form 22a: Yes b. Change Characterization to: No Change c. Change Reason: No Change d. Change RE Code to: RE-1 e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200001734 1