IN THE CASE OF: BOARD DATE: 24 September 2021 DOCKET NUMBER: AR20210005040 APPLICANT REQUESTS: The applicant requests reconsideration to change her uncharacterized entry level status discharge to honorable, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Military Personnel and Medical Records 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 AR20140002116 on 4 September 2014. 2. The applicant states: a. She is requesting an upgrade of her character of service to honorable due to being sexually harassed by a Drill Instructor. She was stalked, followed, propositioned, cornered, touched, belittled and verbally abused just to name a few. This has followed the applicant for her whole life. She was blamed by the Army that is was her fault. She attended counseling and was told that she had two (2) choices to get out of the Army or be kicked out because it was her fault. b. Being a female in a male dominated field of military occupational specialty (MOS) 31Q (Tactical Satellite/Microwave Systems Operator) she was under a lot of stress to perform. This caused a decrease in her performance. She was constantly being watched and harassed not only by the offender but also by his buddies. She still suffers in silence to this day from these traumatic events while in the Army. She has nightmares, had trouble building intimate relationships, and lack of trust. The list goes on and on. c. This harassment continually contributed to her whole career while serving, as it affected her daily life. The incident was ongoing while she was at Fort Gordon, Georgia. Had it not been for this ongoing harassment she would have continued her career in the Army for 20 years, as that was her original plan when she enlisted. Her case she should be reconsidered based on the 2017 liberal consideration for military sexual harassment. 3. On 13 November 1990, the applicant enlisted in the Regular Army. She did not complete training requirements; therefore, she was not awarded an MOS. 4. The applicant received developmental counseling on: * 5 February 1991, for failing to follow the standards and requirements set for Phase IV * 19 February 1991, for failing to achieve 70 percent or higher on the End of Annex Test * 18 April 1991, for failing to follow instructions 5. On 30 April 1991, a mental status evaluation shows, in pertinent part, the applicant’s mood or affect was depressed. The applicant was psychiatrically cleared for any administrative action deemed appropriate by her chain of command. The Chief, Community Mental Health Service medical officer recommend that, administrative separation be processed in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as it was anticipated that the applicant would not adapt socially or emotionally to military life. 6. On 6 May 1991, 175 days after she entered active duty, the applicant's company commander notified her that he was initiating action to separate her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, for an inability to adapt to the military life. He also informed the applicant that if approved, she would receive an entry level separation with uncharacterized service. Furthermore, she would not be permitted to reenlist in the U.S. Army within 2 years from the date of separation. The commander also informed the applicant of her rights. 7. On 6 May 1991, the applicant acknowledged receipt of the separation notification action. She indicated that she did not desire to consult with counsel, and she elected not to submit a written statement in her own behalf. The applicant did not request a separation physical. 8. The applicant's company commander submitted a memorandum to the separation authority strongly recommending the applicant be discharged under the provisions of Army Regulation 635-200, chapter 11, due to her inability to mentally adapt to the military environment. The commander stated the applicant expressed a very strong desire to be separated from the military and vocalized an apparent willingness to perform acts of misconduct in order to be discharged for misconduct. However, the commander felt that the applicant’s current bouts of depression would overcome her best judgement to the point that she would do anything for a discharge. 9. On 9 May 1991, the separation authority approved the unit commander's request and directed the applicant's separation under the provisions of Army Regulation 635- 200, chapter 11, with an uncharacterized entry level separation. 10. On 14 May 1991, the applicant was discharged accordingly. Block 24 (Character of Service) of the applicant's DD Form 214 shows she received an "uncharacterized" characterization of service. Block 25 (Separation Authority) shows that she was discharged under the provisions of Army Regulation 635-200, chapter 11. Block 28 (Narrative Reason for Separation) shows "entry level status." This form also shows that she completed 6 months and 2 days of creditable active military service. 11. On 4 September 2014, the ABCMR voted unanimously to deny the applicant’s request to change her uncharacterized entry level separation to honorable. 12. On 28 April 2021, the Army Review Boards Agency (ARBA), Case Management Division submitted a request to the Director, U.S. Army Crime Records Center for redacted Criminal Investigation Division/Military Police Report (report of investigation) pertaining to the applicant. No correspondence or communication was provided. 13. The applicant contends she was sexually harassed by a drill instructor and his buddies while attending training. She provided what appears to be copies of her entire military personnel and medical records during her period of active duty. In her supporting documents provided to the Board, she wrote on a memorandum for recovery of dependent identification cards that she was pregnant at the time of discharge and did not know it. She gave birth on 23 December 1991, “due to incident of MST [military sexual trauma]”. The Board notes, in her previous petition to the ABCMR, the applicant did not assert that she had experienced sexual harassment or military sexual trauma. The evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, entry level status, with uncharacterized service, due to an inability to adapt to the military environment. She failed to follow instructions and standards despite receiving rehabilitative support through performance counseling. The applicant failed her End of Annex examination and expressed a very strong desire to be separated from military service. The documents provided by the applicant were reviewed and considered by the ARBA medical staff and Board. 14. An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. 15. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 16. Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status. It states, in pertinent part, 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. 17. Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service. It provides, in pertinent part, that an uncharacterized separation is an entry-level separation. a. A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. 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 in service of more than 92 days of active military service. b. 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. 18. The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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 mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 19. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 20. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 21. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for reconsideration to change her uncharacterized entry level status discharge to honorable, and a personal appearance before the Board. b. The applicant states: (1) She is requesting an upgrade of her character of service to honorable due to being sexually harassed by a Drill Instructor. She was stalked, followed, propositioned, cornered, touched, belittled and verbally abused just to name a few. This has followed the applicant for her whole life. She was blamed by the Army that is was her fault. She attended counseling and was told that she had two (2) choices to get out of the Army or be kicked out because it was her fault. (2) Being a female in a male dominated field of military occupational specialty (MOS) 31Q (Tactical Satellite/Microwave Systems Operator) she was under a lot of stress to perform. This caused a decrease in her performance. She was constantly being watched and harassed not only by the offender but also by his buddies. She still suffers in silence to this day from these traumatic events while in the Army. She has nightmares, had trouble building intimate relationships, and lack of trust. The list goes on and on. (3) This harassment continually contributed to her whole career while serving, as it affected her daily life. The incident was ongoing while she was at Fort Gordon, Georgia. Had it not been for this ongoing harassment she would have continued her career in the Army for 20 years, as that was her original plan when she enlisted. Her case she should be reconsidered based on the 2017 liberal consideration for military sexual harassment. c. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Military Personnel and Medical Records d. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. e. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. f. The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 13 November 1990 and was discharged on 14 May 1991, the applicant was discharged accordingly. Block 24 (Character of Service) of the applicant's DD Form 214 shows she received an "uncharacterized" characterization of service. Block 25 (Separation Authority) shows that she was discharged under the provisions of Army Regulation 635-200, chapter 11. Block 28 (Narrative Reason for Separation) shows "entry level status." g. The applicant received developmental counseling on: * 5 February 1991, for failing to follow the standards and requirements set for Phase IV * 19 February 1991, for failing to achieve 70 percent or higher on the End of Annex Test * 18 April 1991, for failing to follow instructions h. On 30 April 1991, a mental status evaluation (MSE) shows, in pertinent part, the applicant’s mood or affect was depressed. The applicant was psychiatrically cleared for any administrative action deemed appropriate by her chain of command. The Chief, Community Mental Health Service medical officer recommend that, administrative separation be processed in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as it was anticipated that the applicant would not adapt socially or emotionally to military life. i. Additionally, the MSE notes that that the applicant meets the retention requirements of chapter 3, AR 40-501. j. On 6 May 1991, 175 days after she entered active duty, the applicant's company commander notified her that he was initiating action to separate her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, for an inability to adapt to the military life. He also informed the applicant that if approved, she would receive an entry level separation with uncharacterized service. Furthermore, she would not be permitted to reenlist in the U.S. Army within 2 years from the date of separation. The commander also informed the applicant of her rights. k. On 6 May 1991, the applicant acknowledged receipt of the separation notification action. She indicated that she did not desire to consult with counsel, and she elected not to submit a written statement in her own behalf. The applicant did not request a separation physical. l. On 9 May 1991, the separation authority approved the unit commander's request and directed the applicant's separation under the provisions of Army Regulation 635- 200, chapter 11, with an uncharacterized entry level separation. Accordingly, she was separated on 14 May 1991. m. On 4 September 2014, the ABCMR voted unanimously to deny the applicant’s request to change her uncharacterized entry level separation to honorable. n. On 28 April 2021, the Army Review Boards Agency (ARBA), Case Management Division submitted a request to the Director, U.S. Army Crime Records Center for redacted Criminal Investigation Division/Military Police Report (report of investigation) pertaining to the applicant. No correspondence or communication was provided. o. The applicant contends she was sexually harassed by a drill instructor and his buddies while attending training. She provided what appears to be copies of her entire military personnel and medical records during her period of active duty. In her supporting documents provided to the Board, she wrote on a memorandum for recovery of dependent identification cards that she was pregnant at the time of discharge and did not know it. She gave birth on 23 December 1991, “due to incident of MST [military sexual trauma]”. The Board notes, in her previous petition to the ABCMR, the applicant did not assert that she had experienced sexual harassment or military sexual trauma. The evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, entry level status, with uncharacterized service, due to an inability to adapt to the military environment. She failed to follow instructions and standards despite receiving rehabilitative support through performance counseling. The applicant failed her End of Annex examination and expressed a very strong desire to be separated from military service. The documents provided by the applicant were reviewed and considered by the ARBA medical staff and Board. p. While the applicant did not indicate MST on her previous application, she notes that, “There were unforeseen circumstances while I was enlisted in the US Army…” She did not expand on this statement at the time of her application at that time. q. JLV contains no Behavioral diagnosis or BH encounters. r. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant has a mitigating condition of MST. The applicant does not have a service connection. The applicant met retention standards at the time of discharge. Under liberal guidance, MST is a mitigating factor for her unsatisfactory performance. It is the recommendation of the this BH advisor that the characterization of the applicant’s discharge be upgraded to “Honorable” and the narrative reason be changed to “Secretarial Authority”. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, and the reason for separation. The Board considered the medical records and the review and conclusions of the advising official. The Board concurred with the medical reviewer's assessment that the applicant has a mitigating condition of MST. The applicant does not have a service connection. The applicant met retention standards at the time of discharge. Under liberal guidance, MST is a mitigating factor for her unsatisfactory performance. After reviewing the application and all supporting documents, the Board found that relief was warranted based upon guidance for consideration of discharge upgrade requests. The Board voted to upgrade her discharge to honorable. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XXX: XX: XX: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20140002116 on 4 September 2014. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 14 May 1991 showing his character of service as 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. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states 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. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status. It states, in pertinent part, 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. 3. Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service. It provides, in pertinent part, that an uncharacterized separation is an entry-level separation. a. A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. 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 in service of more than 92 days of active military service. b. 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. c. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 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 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 (TBI); 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 Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. a. 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. b. 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. 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) AR20210005040 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1