1. Applicant's Name: a. Application Date: 19 April 2021 b. Date Received: 27 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is uncharacterized. The applicant requests an upgrade to general (under honorable conditions) or honorable. The applicant though legal counsel seeks relief contending, in effect, that her discharge be upgraded on the grounds that her discharge characterization is inequitable. It is believed that "Uncharacterized" discharges for non-citizens like the applicants are treated by another federal agency as derogatory discharge equivalent to an "under other than honorable" or "dishonorable" discharge. The applicant is suffering adverse consequences from her discharge status the Army clearly did not intend. The applicant enlisted in the Army under the Military Accessions Vital to the National Interest (MAVNI) program. The MAVNI program was initiated by the Secretary of Defense to recruit certain categories of non-citizens with foreign language skills or medical expertise. It was created to address critical shortages of healthcare professionals and high- quality, multi-lingual, culturally-diverse recruits. The applicant contends that she was recruited to enlist through the MAVNI program because the Army needed vital language and healthcare skills that it was not getting through its citizen recruits. The applicant enlisted because she wanted to serve her adopted country with her language skills and professional skills. She served in a Reservist capacity for 2 years and 7 months and met all USCIS naturalization requirements before entering active duty. Through no fault of her own she was diagnosed with a tumor in her breast while at active duty training, and was discharged for this medical reason. Because of changes that DOD made to the MAVNI program after the applicant enlisted and resulting delays by DOD/Army and USCIS, the applicant did not get the benefit of the promised fast track to US Citizenship and has fallen into "limbo," where she is without a legal immigration status, in difficult and tenuous employment situations, and at risk of deportation to a country that would persecute her for her sworn allegiance to the US and solely as a result of the "Uncharacterized" description on her DD Form 214, the applicant cannot become a naturalized US citizen. In a telephonic personal appearance hearing conducted on 16 August 2021, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: Failed Medical / Physical Procurement Standards / AR 635-200 / Chapter 5-11 / JFW / RE-3 / Uncharacterized b. Date of Discharge: 21 December 2018 c. Separation Facts: (1) Date Entrance Physical Standards Board (EPSBD) convened: 10 December 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: Benign neoplasm of left breast. (3) Date Applicant Reviewed and Concurred with the Findings, and Requested Discharge without Delay: On 18 December 2018, the applicant concurred with the proceedings and request to be discharged from the United States Army without delay. (4) Separation Decision Date / Characterization: 18 December 2018 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: ADT, 5 November 2018 / 10 weeks for basic training and 11 weeks MOS training, or until complete b. Age at Enlistment / Education / GT Score: 37 / Bachelor's / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 2 years, 9 months, 8 days d. Prior Service / Characterizations: USAR, 14 March 2016 to 4 November 2018 / NA (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: None 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; letters of support; timeline; memorandum with Exhibits 1-5; legal brief; diploma and transcript; and resume. 6. POST SERVICE ACCOMPLISHMENTS: The applicant came to the U.S. from Azerbaijan as a F-1 graduated student in August 2013 to study at Emporia State University in Kansas. She earned straight A's and received a Master's Degree in Instructional Design and Technology from Emporia State in May 2017. The applicant's professors attest that the applicant was one of the top student in her degree program, she had personal strength and determination together with an outgoing, friendly and optimistic personality and she had a huge heart, with lots of empathy for others. 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 Service-member discharged from active military service within 15 years of the Service-member'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 Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier'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. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. Delete if not applicable (5) Paragraph 5-1, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, general (under honorable conditions), or an uncharacterized description of service if in entry-level status. (6) 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. (7) Glossary prescribes entry-level status for RA Soldiers is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. For ARNGUS and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training (AIT). (Soldiers completing Phase I BT or basic combat training remain in entry-level status until 90 days after beginning Phase II.) Delete the gray area for Active Duty. Delete if not applicable e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JFW" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5-11, Failed Medical/Physical/Procurement Standards. f. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JFW" will be assigned an RE Code of "3." 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant through legal counsel requests an upgrade to general (under honorable conditions) or honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant seeks relief contending that her discharge be upgraded on the grounds that her discharge characterization is inequitable. It is believed that "Uncharacterized" discharges for non-citizens like the applicants are treated by another federal agency as derogatory discharge equivalent to an "under other than honorable" or "dishonorable" discharge. The applicant is suffering adverse consequences from her discharge status the Army clearly did not intend. The applicant enlisted in the Army under the Military Accessions Vital to the National Interest (MAVNI) program. The MAVNI program was initiated by the Secretary of Defense to recruit certain categories of non-citizens with foreign language skills or medical expertise. It was created to address critical shortages of healthcare professionals and high-quality, multi-lingual, culturally-diverse recruits. 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 concurred with the proceedings and requested to be discharged from the United States Army without delay. 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 36 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. 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 she is suffering adverse consequences from her discharge status the Army clearly did not intend. 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. 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): The applicant submitted the following additional document(s): On 16 August 2021, the morning of the hearing, applicant's witness provided a 2-page "Witness Statement" that was added to the case file and considered by the Board. b. The applicant presented the following additional contention(s): Applicant, character witnesses, and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. 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? N/A. The discharge was not punitive; thus liberal consideration does not apply (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contentions (1) The applicant seeks relief contending that her discharge be upgraded on the grounds that her discharge characterization is inequitable. It is believed that "Uncharacterized" discharges for non-citizens like the applicants are treated by another federal agency as derogatory discharge equivalent to an "under other than honorable" or "dishonorable" discharge. The applicant is suffering adverse consequences from her discharge status the Army clearly did not intend. 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 concurred with the proceedings and requested to be discharged from the United States Army without delay. (2) The applicant contends that she is suffering adverse consequences from her discharge status the Army clearly did not intend. 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. 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. c. The majority of the Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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: (3) The Board voted not to change the applicant's characterization of service because the applicant had medical conditions based on a diagnosis of a benign neoplasm of the left breast. She was unable to continue training due to pain. The medical approving authority completed the Entrance Physical Standards Board proceedings and determined she had poor retention potential in the Army. The applicant did not supply sufficient independent corroborating evidence to support contentions, and 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. (4) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (5) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change 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 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 AR20210008869 1