IN THE CASE OF: BOARD DATE: 21 November 2022 DOCKET NUMBER: AR20220001259 APPLICANT REQUESTS: in effect, a medical discharge in lieu of her honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Medical Documents (Including Injuries from 2001-2004) . Unites States Army Reserve (USAR) and National Guard (NG) Liaison Counseling Form, 30 April 2001 . Line of Duty (LOD) documents, 13 and 25 July and 3 August 2001 . Orders 271-041, 28 September 2005 . Orders 272-066, 29 September 2005 . Hughston Clinic Treatment of Injuries, 2015-2018 . Veterans Affairs (VA) Disability Ratings, 30 January 2019 . Military Sexual Trauma (MST) Documentation, 2019-2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code (USC), 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 she was honorably released without personal notice or action for a disability in 2008. She made repeated phone calls to Sergeant (SGT) , Squad Leader in , and Master Sergeant (MSG) , Platoon SGT in , to discuss a disability discharge. Several appeals were submitted to the unit, although none were filed on her behalf. Her honorable release without a disability evaluation or separation is an injustice or error. a. The following conditions deemed her unfit for duty due to physical and mental disabilities: Post-traumatic stress disorder (PTSD) (PTSD by reliving the MST event through flashbacks and dreams), MST, depression, panic attacks, sleep deprivation, anxiety, unexplained social and economic behavior, relationship issues, and avoidance of activities that create hyperarousal of all substantiated disabilities. Her injuries from 2001, right shoulder, bilateral tibia pain, right foot conditions, and MST with PTSD were determined to be physically unfitting at the time of discharge. b. Prior to her discharge in November 2008, a rape occurred on 15 October 2005 while serving during Hurricane Katrina. After the required early separation of mobilization (MOB) orders from Lieutenant Colonel (LTC) , she was informed to report to her home station in , . Thereafter, several incidents occurred which placed her in an unprecedented situation serving with the perpetrators. She was transferred to 623rd Field Artillery in Campbellsville and Bowling Green, KY for her safety and to complete her enlistment without the presence of the perpetrators. The recorded evidence, records from treatment facilities, a memorandum for record from her squad leader . , the sexual assault documentation from Detective Lieutenant and the formal charge filed with 911 under CFS SJPOS200500035410 serve to legitimize the trauma claim (see attachments). 3. On 15 November 2000 the applicant enlisted in the Army National Guard of the U.S. (ARNGUS) for 8-years. 4. In support of her application the applicant provides: a. DA Form 5181-R (Screening Note of Acute Medical Care), dated 19 April 2001, shows the applicant was seen by a physician assistant at Fort Jackson, SC during her 8th week of basic training for a follow-up visit for shin splints that she had for 6 weeks. Also noted was bilateral lower leg pain, diffuse medial tibial tenderness, and compartment syndrome. b. DA Form 5181-R, dated 27 April 2001, shows the applicant was seen by medical personnel at Fort Jackson, SC during her 9th week of basic training for right foot pain that she had for 5 days. c. Fort Jackson Form 689 (Fort Jackson Sick Slip), dated 27 April 2001, shows due to swollen foot pain she was instructed to wear running shoes, and not to run, march, jump, or stand for more than 15 minutes through 3 May 2001. A follow up was not scheduled. d. A USAR and NG Liaison Counseling Form, dated 30 April 2001, shows a Army Training and Doctrine Command USAR/NG liaison noncommissioned officer instructed the applicant to report to the Moncrief Army Health Clinic, Fort Jackson, SC for initiation of a LOD for her right foot. She was advised that she would be further looked at when she arrived at advanced individual training (AIT) in Alabama. It was recommended that she not ship to AIT because of her injury per Training and Doctrine Command Regulation 350-6 (Enlisted Initial Entry Training Policies and Administration). e. Standard Form (SF) 600 (Chronological Record of Medical Care), dated 1 May 2001, shows the applicant was seen at Moncrief Army Health Clinic, Fort Jackson, SC for right foot pain in her 9th week of basic training. f. Four SFs 600 shows the applicant was seen at Fox Army Health Center, Redstone Arsenal, AL on/for - . 10 May 2001 -7 days of right shoulder pain and 2 weeks of right foot pain, believes she had a fractured bone, she was given medicine and a temporary profile . 17 May 2001 -follow up for right foot pain, complained of left foot pain and right shoulder injury for 2 weeks . 15 June 2001 -shin pain bilateral for 2 months, pain when steeping down and up, scheduled X-ray . 25 June 2001 -physical therapy and X-ray results show negative for stress or other normality, physician assistant states compression syndrome of legs g. DA Form 2173 (Statement of Medical Exam and Duty Status) dated 15 June 2001 shows the applicant underwent an informal LOD which indicates she sustained a third metatarsal stress fracture and shin splints, bilaterally which developed during March 2001 while participating in basic combat training, Fort Jackson, SC. Her injury was determined to have incurred in the LOD but did not require a formal LOD. h. SF 600 dated 25 June 2001 shows her initial physical therapy evaluation with a plan to see her for fours visits. i. SF 519-B (Radiologic Examination Report) dated 25 June 2001 shows an order for pain in both of her lower legs. Anterior-Posterior and lateral views of the lower legs demonstrate no evidence of a stress fracture, inflammatory or neoplastic change. There was no radiographic evidence of a stress fracture or other significant radiographic abnormality. If clinical suspicion for a stress fracture persisted, recommend follow-up x-rays in approximately 2 weeks or correlation with a bone scan. j. Memorandum for Commander, U.S. Army Training Center and Fort Jackson, SC, LOD (Applicant) dated 13 July 2001, shows the LOD was reviewed for completeness by the adjutant. On 25 July 2001 the LOD was reviewed for completeness by authority of the Secretary of the Army and on 3 August 2001 it was approved by the ARNG, Adjutant General. k. SF 600 dated 18 July 2001 shows the applicant was referred to have x-rays for her bilateral shin splints. l. A Radiology Consult Report dated 7 August 2001 shows the nuclear scan revealed increased uptake in the tibias bilaterally. These findings are consistent with shin splints. Subsequent radiographs of the right and left tibia and fibula are unremarkable. Additional uptake is noted in the feet. Radiographs of the right foot revealed a healing stress fracture of the third metatarsal. Radiograph of the left foot revealed no obvious fracture. The doctor’s opinion was bilateral shin splints and healing stress fracture of the right third metatarsal. m. SF 600 dated 13 August 2001 shows she was place on a 30-day temporary profile consisting of walking at her own pace up to 2-miles, and no running or jumping n. SF 600 dated 6 September 2001 shows she was seen at Fox Army Health Center, Redstone Arsenal, AL for bilateral shin splints. o. DA Form 3349 (Physical Profile) dated 6 September 2001 shows she was assigned a temporary profile of 112111 for shin splints through 6 November 2001. The form did not indicate that she did not meet retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3. p. Memorandum, Request for Authorization for LOD Injury Follow-Up Care, dated 11 January 2002 shows follow up care was requested for her shin splints and on 12 March 2001 it was approved. 5. Orders 042-121 dated 11 February 2003 shows the applicant was ordered to active duty on 11 February 2003 for operation enduring freedom not to exceed 365 days. On 25 February 2003 she was to report the MOB station at Fort Campbell, KY. On 19 June 2003 she was released from active duty for completion of required active service. 6. In support of her application the applicant provides: a. SF 600 dated 19 October 2004 shows she was seen at Ireland Army Community Hospital, Fort Knox, KY for right ankle and foot strain due to slipping on the way to the bathroom. b. Radiology results for her right ankle and foot dated 19 October 2004 shows routine views of the foot revealed no evidence of fracture, dislocation or other abnormality. And her ankle revealed no joint effusion; fracture, subluxation or dislocation. c. SF 600 dated 22 October 2004 shows she was seen at Ireland Army Community Hospital, Fort Knox, KY for bilateral leg pain “shin splints.” Hurts when she runs 1-mile unless doing her own pace. She has had one and half years of no running, however her problem with shin splints has come back and as bad as it was when she was in basic training. Currently the applicant is in her first year of the Reserve Officer Training Corps. d. DA Form 3349 dated 22 October 2004 shows a permanent profile was initiated for bilateral shin splints with a 2 for lower extremities with a no for 2-mile run, unlimited running, and unlimited walking. This form was not signed by an approving authority and did not indicate that she did not meet retention standards in accordance with AR 40­501, chapter 3. e. Orders 271-041 dated 28 September 2005 shows she was ordered to active duty for special work from 1-31 October 2005 in Baton Rouge, LA for Hurricane Katrina Recovery Operations. f. Orders 272-066 dated 29 September 2005 amended Orders 271-041 dated 28 September 2005 to show her dates changed to 26 September -4 November 2005. 7. A NG Bureau (NGB) Form 22 (NG Report of Separation and Record of Service) shows she was honorably discharged from the ARNG and as a Reserve of the Army on 14 November 2006 per NGR 600-200 (Enlisted Personnel Management System), paragraph 8-36n, Expiration of active status commitment in the Selected Reserve and was transferred to the USAR Control Group (Annual Training) to complete her service obligation. She completed 6 years of net service during this period. Her NGB Form 22 shows in: a. Block 11 (Terminal Date of Reserve/Military Service Obligation) -14 November 2008. b. Block 18 (Remarks) -Soldier was discharged without personal notice per NGR 600-200, paragraph 8-21b. Soldier assigned to USAR Control Group (Annual Training) for completion of 2 years, 0 months, 0 days contractual obligation. 1) Selected Reserve Incentive Program: EB 2) Effective: 15 November 2000 3) Termination Date: 14 November 2006 4) Recoup: No 5) See Item 23. Individual Active Duty for Training: 20 February -27 September 2001 MOB: 11 February 19 June 2003. 8. Orders 345-829 dated 11 December 2006 shows her termination reason as “Other.” 9. A working copy of DD Form 2808 (Report of Medical Exam) dated 30 March 2011 shows the applicant underwent a pre-entry physical examination which indicates she was generally in good health and qualified for enlistment in the Army. 10. On 30 March 2011 the applicant enlisted in the Army Reserve for 6-years. 11. In support of her application the applicant provides: a. Progress notes and a VA Radiology Report shows the applicant was seen at the VA Medical Center, Birmingham, AL on 10 May 2011 for a sprained left ankle due to active duty running. The radiology results shows there were no findings of a fracture, alignment was unremarkable, no gross talar dome abnormality or soft tissue edema. b. SF 600 dated 26 September 2011 shows she was seen by a physical therapist for recurrent bilateral shin/calf pain which she has had for the pass 4 days. Since arriving to the Defense Information School in Alabama she has experienced increased running, excessive walking, and stairs which aggravate her shins and calves. c. DA Form 3349 dated 25 October 2011 shows she was assigned a temporary profile of 112111 for a lower extremity injury through 24 November 2011. The applicant was restricted from doing the Army physical fitness test 2-mile run, walk, swim, and bike. This form did not indicate that she did not meet retention standards in accordance with AR 40-501, chapter 3. d. Radiology results for chronic tibial pain dated 10 November 2011 shows the bones were normal in mineralization and alignment. There was no evidence of acute fracture, joint spacing was preserved, and soft tissues were unremarkable. e. Progress Notes shows ­ . 21 November 2011 -Knee pain due to running while on active duty . 29 November 2011 -Right knee hurting for 1 month f. DA Form 3349 dated 21 April 2012 shows she was assigned a temporary profile of 112111 for shin splints and pulled ligament right hip through 21 July 2012. The applicant was restricted from doing the Army physical fitness test 2-mile run, walk, swim, and bike. This form did not indicate that she did not meet retention standards in accordance with AR 40-501, chapter 3. 12. On 14 June 2012 the applicant enlisted in the ARNGUS for 4-years and 38 weeks. 13. In support of her application the applicant provides: a. Progress notes and a VA Radiology Report shows the applicant was seen at the VA Medical Center, Birmingham, AL on 2 August 2012 for leg pain. The radiology results shows report of bilateral feet indicating long-standing pain with left being greater than the right. There were no displaced fractures or subluxations identified. The joint spaces of her feet are intact and appear normal. The surrounding soft tissues were unremarkable. Clinical history states leg pain for 2 years that has been aggravated by sprints. b. Progress Notes shows on 25 September 2012 she received a diagnosis of bilateral shin pain. c. Progress notes and a VA Radiology Reports shows the applicant was seen at the VA Medical Center, Birmingham, AL on 3 October 2012 for bilateral lower extremity pain. The radiology results show the marrow signal in the right foreleg was within normal limits. The muscle and tendon signal appeared within normal limits and there was no soft tissue mass or fluid collection evident. There was an indication that the pain was greater on the left than the right. d. A SF 600 dated 10 June 2013 shows she was seen for bilateral shin pain. e. A DD Form 689 (Individual Sick Slip) dated 10 June 2013 shows she was seen for shin splints and referred to the troop medical clinic (TMC), The remarks indicate no running, jumping, ambulate at her own pace for 24 hours; OK for 5 mile ruck march tomorrow. f. A Report of Injury/Illness dated 16 June 2013 states the applicant was seen at the Medical Aid Facility, Fort McClellan, AL on 9 June 2013 for shin splints (medial tibial stress syndrome). g. A DA Form 2173 dated 16 June 2013 shows the applicant underwent an informal LOD which indicates she developed bilateral medial tibial stress syndrome (shin splints) while training at the officer candidate school (OCS). Training began on 8 June 2013 and ended on 22 June 2013. Her injury was determined to have incurred in the LOD but did not require a formal LOD. h. SF 600 dated 16 June 2013 shows she was seen for bilateral leg pain. i. DD Form 689 dated 16 June 2013 shows she was given a profile for bilateral lower extremity pain lasting 7 days, consisting of no running and marching at her own pace for 72 hours, however she would be able to perform land navigation. j. A Soldier's Rights and Warning Statement dated 16 June 2013 shows Lieutenant Colonel . informed the applicant of her rights, and that she did not have to make any statement relating to the origin, incurrence of aggravation of her injuries which she understood. The applicant elected to make a statement. k. A DA Form 2823 (Sworn Statement) dated 16 June 2013 shows the applicant stated during OCS training she was injured causing bilateral pain in her lower extremities. The pain occurs when running in formation and at her own pace. l. Progress notes and a VA Radiology Reports shows the applicant was seen at the VA Medical Center, Birmingham, AL on 25 June 2013 for knee pain. The radiology results show the marrow signal was preserved apart from minimal subcortical cystlike change beneath the tibial eminence on coronal image 12. There was a trace amount of joint fluid and a trace popliteal cyst. There was increased signal in the lateral facet, median ridge and medial facets of the patella. There was mild nonspecific prepatellar subcutaneous edema. The extensor mechanism, cruciate ligaments and medial and lateral stabilizers of the knee were intact. The medial and lateral femorotibial compartment cartilage appear preserved. No marginal osteophyte formation was evident. There was degenerative signal change in the medial and lateral menisci and no discrete meniscal tear was evident. m. An Image South PET Center letter dated 5 July 2013 states a PET/CT fusion total body bone scan was performed. There was no increased activity within the cortex of both tibiae most pronounced anteromedially consistent with shin splints. The doctor saw no obvious stress factor. There was similar increased activity along the medial cortex of both proximal femurs at the attachment of the abductor muscles. Outside of the lower extremities, no focal abnormal skeletal uptake was seen. n. A UAB Medicine Return to Work Status Form dated 22 August 2013 shows due to shin splints it was recommended that the applicant not run for 3-4 months and would reassess in 3 months and update. o. SF 600 dated 13 September 2013 shows she was seen at the TMC, Greenville, KY for mild pain on left lateral aspect of foot. Began to hurt on 12 September 2013 while ruck marching with 35 pounds. p. Progress Notes shows the applicant was seen at the VA Medical Center, Birmingham, AL for - . 13 February 2013 -shin pain, both legs . 25 April 2013 -Shin pain due to running . 24 June 2013 -Knee pain . 26 September 2013 -Knee pain, received knee brace and selfcare/home management training q. An Encounter Summary dated 30 October 2013 shows the applicant was at Orthosports St Vincent Birmingham, Birmingham, AL for bilateral leg pain. After examination, the doctor recommended no running and would discuss surgical considerations for chronic recalcitrant shin splints. r. DA Form 2173 dated 24 December 2013 shows the applicant underwent an informal LOD which indicates she was training at the OCS, Fort McClellan, AL when medial tibia pain developed, resulting from shin splints. Her injury was determined to have incurred in the LOD but did not require a formal LOD. s. A memorandum for Joint Forces Headquarters, Frankfort, KY, LOD Investigation (Applicant) dated 6 January 2014 shows the KYARNG Adjutant General approved the applicant’s LOD by authority of the Secretary of the Army for sprains and strains of unspecified site of knee and leg -Leg, Bilateral. 14. A DA Form 4856 (Developmental Counseling Form) dated 25 October 2014 shows the applicant was counseled on requesting to be discharged, drill status, and temporary out of state move. She withdrew from OCS due to injury and did not want to recycle. 15. A DA Form 4856 dated 16 December 2014 shows the applicant was counseled for initiation of discharge procedures under the provisions of AR 135-178, Chapter 8. 16. On 1 November 2014 her first sergeant (1SG) notified her that she was being recommended for separation under the provisions of AR 135-178, Chapter 8 for failing to complete OCS or become enrolled in an OCS recycle course within 24 months of enlistment. The reasons for his proposed action was that the applicant resigned from the course due to not being able to physically meet the standards of OCS. In accordance with AR 601-210 (Active and Reserve Components Enlistment Program), Fiscal Year 13/14, Chapter 2, Paragraph 2-2, Soldiers failing to become deployable within 24 months of enlistment must be discharged per NGR 600-200. 17. On 16 December 2014 the applicant acknowledged receipt of her 1SG’s intent to separate her and in a separate memorandum stated she did not file an unrestricted report of a sexual assault in which she was a victim within the past 24 months. On this same date her 1SG recommended her to be discharged from the KYARNG prior to her expiration term of service under the provisions of AR 135-178, Chapter 8 with an uncharacterized characterization of service. 18. On 12 March 2015 the applicant’s commander recommended she be discharged under the provisions of AR 135-178, Chapter 8 with an uncharacterized characterization of service. The commander verified that the applicant did not deploy overseas and had not been diagnosed with PTSD or a traumatic brain injury. 19. On 31 March 2015 the separation authority directed separation from the KYARNG prior to her expiration term of service under the provisions of AR 135-178, Chapter 8, entry level performance and conduct with an uncharacterized characterization of service and would not be transferred to the Individual Ready Reserve. 20. A NGB Form 22 and Orders dated 6 April 2015 shows she was discharged from the KYARNG and as a Reserve of the Army on 6 April 2015 under the provisions of NGR 600-200, paragraph 6-35e, entry level performance and conduct with an uncharacterized characterization of service. She completed 2 years, 9 months, and 23 days of net service during this period. Block 18 (Remarks) of her NGB Form 22 shows: Soldier was discharged without personal notice per NGR 600-200, paragraph 6­21b. 21. In support of her application the applicant provides a Hughston Clinic Treatment of Injuries that shows an encounter assessment date of 21 October 2015 that states she would have a Magnetic resonance imaging (MRI) for her right shoulder to evaluate for labral tear versus intra-articular pathologies. The results of the MRI is not shown. It also included physician notes for surgery on 24 November 2015 encounter date 18 November 2015, secondary adhesive capsulitis encounter date 22 February 2016, manipulation secondary adhesive capsulitis encounter date 6 April 2016, and physical therapy 1-2 times per week for 3-4 weeks, encounter date 20 August 2018. 22. The applicant provides a VA Disability Ratings printout that shows she was granted a combined disability rating of 70 percent (%) for the following disabilities effective 30 January 2019: . right shoulder impingement syndrome, adhesive capsulitis status post shoulder arthroscopy-posterior labral, repair (dominant), 20% . PTSD, 50% . shin splints, right lower extremity with knee impairment, 10% . shin splints, left lower extremity, 0% . recurrent dislocation due to right shoulder impingement syndrome, adhesive capsulitis status post shoulder, 0% . arthroscopy-posterior labral repair (dominant), 20% . scars, right shoulder, 0% 23 The applicant provides the following MST Documentation - a. Emails ­ (1) 6 September 2019 – The applicant informed KYARNG that she was trying to locate her sexual assault report. (2) 29 January 2020 -Detective Lieutenant states she could only find a documented call for service listed on 15 October 2005 under CFS SJPOS200500035410 which showed the address of which was the and that a simple rape was reported by the applicant saying the perp was and it occurred after midnight. There was no written reports, no documents, and no investigative reports. She checked with their Crime Scene Division; there was no evidence, photographs, rape kit, or chain of custodies of that nature. Had any of this evidence existed they would have it because they never discard evidence in a rape case. She also checked with the District Attorney's Office and the Clerk of Court's office, there was never any trials or court proceedings with this case or in the applicant’s name regarding anything of this nature. Herself and the records manager exhausted all means in regard to this case but there was no documentation of anything other than a detective speaking with the applicant and that detective was now deceased. b. Two letters addressed to the Evidence Intake Center, VA for the applicant’s supplemental claim documentation for PTSD. (1) On 8 July 2020 the applicant states ­ (a) On 15 October 2005 a rape was reported to 911, SGT , Squad Leader, and Sergeant First Class (SFC) , Platoon SGT. This incident occurred at the in , . The service members involved were Specialist , Private First Class , and two other service members. (b) SGT transported her to a hospital located on Bell Chase Air Force Base where a rape kit was conducted. An investigative report and evidence were taken by a detective at the Sherriff's Office, Criminal Investigations Division. (c) Sworn statements were taken from her and all service-members involved and reported to the J-6 LTC , Det 4 307th Maintenance Company. Thereafter the applicant was required to have an escort for all coming and going and assigned to a different platoon while serving for Hurricane Katrina Recovery Operations. (d) A jury trial was conducted at the Court House for which a lawyer was appointed on her behalf. (e) Due to the substantial emotional and post-traumatic stress involved after the sexual trauma in addition to serving near the service members, her orders were ended short and she reported to her home unit, 410th Calvary Drive Glasgow, KY. After all service members returned from MOB, she requested and was granted transfer to complete her enlistment without the presence of the perpetrators for safety concerns and behavioral changes after the rape incident. (f) From October 2005 until present she has been tested for sexually transmitted diseases, received counseling from mental health professionals, suffered from depression, panic attacks, sleep deprivation, anxiety, unexplained social and economic behavior, relationship issues, reliving the event through flashbacks and dreams, and avoidance of activities that may create hyperarousal. (2) On 22 April 2020 SGT states ­ (a) On 15 October 2005 the applicant reported a rape to her that occurred at the in , stating the perps involved were fellow service members as stated above. (b) After this information was presented, she notified SFC , Platoon SGT of the incident. Thereafter, she took the applicant to an emergency room located in , to provide a rape kit. c. A VA Medical Center, Lexington, KY letter dated 10 August 2021 states the applicant is limited in her ability to walk due to an arthritic, neurological, or orthopedic condition. Due to her permanent injury, she cannot walk more than about a block without stopping to rest to ensure the blood flow is supplied to bilateral legs. 24. In regard to the applicant’s sexual assault claim, a Criminal Investigation Division memorandum dated 12 August 2022 states there are no records pertaining to the applicant in the Army criminal file indexes. 25. In regard to the applicant's request for a personal appearance, AR 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. 26. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant has applied to the ABCMR in essence requesting a discharge upgrade, and, in essence, a referral to the Disability Evaluation System (DES) and a discharge upgrade. She states: “I, {Applicant}, was honorably released without personal notice or action for a disability separation in 2008 ... Prior to discharge (Nov 2008), a rape occurred on the 15th of October, 2005 … Documentation of service-connected medical injuries, line of duty reports, Dept. of Veterans Affairs service-connected disabilities, military sexual trauma (MST), post-traumatic stress syndrome (PTSD), consults and counseling from mental health professionals, depression, panic attacks, sleep deprivation, anxiety, unexplained social and economic behavior, relationship issues, PTSD reliving the MST event through flashbacks and dreams, and avoidance of activities that create hyperarousal all substantiate disabilities. I don’t want the discharge on record to define my life. I gave it all for my country and it cost me my wellbeing and normal life.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. The applicant’s first Report of Separation and Record of Service (NGB Form 22) shows she entered the Army National Guard on 15 November 2000 and received an honorable discharge from the Kentucky Army National Guard (KYARNG) on 14 November 2006 under provisions provided in paragraph 8-36n of NGR 600-200, Enlisted Personnel Management: Expiration of active status commitment in the Selected Reserve. c. The second Report of Separation and Record of Service (NGB Form 22), the one for the period of service under consideration, shows she entered the Army National Guard on 14 June 2012 and received an uncharacterized discharge from the Kentucky Army National Guard (KYARNG) on 10 April 2015 under provisions provided in paragraph 6-35e of NGR 600-200, Enlisted Personnel Management (31 July 2009): Entry level performance and conduct. d. Medical documentation from 25 June 2001 shows the applicant to have bilateral lower leg pain early in her initial enlistment: “SUBJECTIVE: This is a 19-year-old National Guard female who is here for AIT {advanced individual training} referred to our clinic by Mr. . of the Troop Medical Clinic with the diagnosis of bilateral shin pain. She reports pain that began back in May 2001 while in Basic Training. Marching, running, and walking up and down steps increases her pain. Rest decreases her pain. X-rays of her shins were normal. She rates her pain at a four on a scale of 0-10, 10 equals worse. She has been on a profile since 5 June 2001.” e. On 22 October 2004, the applicant was placed on a non-duty limiting permanent physical profile for “Bilateral shin splints”. No other conditions were listed on the profile. The applicant was marked as capable of performing all the functional activities required of all Soldiers, including live in an austere environment. The profile simply allowed the applicant to perform an alternate aerobic event in lieu of the 2-mile run event for his Army Physical Fitness Test (APFT). No further permanent profiles were issued. f. The applicant’s 30 March 2011 Report of Medical Examination show the applicant to have been without significant medical issues/conditions and she was determined qualified for service. She reenlisted in the Army Nation Guard on 14 June 2012. g. A 25 September 2012 VA Physical Medicine and Rehab note shows the applicant was started having bilateral shin pain in October 2011 and was being treated for bilateral shin pain caused by running. Following this evaluation, which included video gait analysis, the provider opined her rehabilitation potential as “fair” and continued her on a comprehensive rehabilitation program. h. A 25 April 2013 VA podiatry clinic consult shows she remained symptomatic with running: “Subjective: Follow-up shin pains. States she received orthotics, has been wearing them some, but still has had pains, mainly after running. Was able to go on ruck march without pain . Objective: Presents in flats, no orthotics. Exam unchanged from 2/20/13 visit. Assessment: Arch pain, Flex mild pes planus, Shin pain Plan: Extensive review of mechanics, treatments -need for compliance daily of symptom treatment with icing, ongoing stretching and strengthening, and DAILY use of orthotics. Pt. clearly frustrated, but I encouraged her to continue with current treatment as she has had some improvements.” i. A Statement of Medical Examination and Duty Status (DA Form 2173) shows the applicant was diagnosed with bilateral medial tibial stress syndrome (aka shin splints) incurred with training for officer candidate school (OCS) in June 2013. A 30 October 2013 civilian orthopedic clinic shows she continued to have symptoms despite 3 months of no activity, and it was recommended she continue to refrain from running. j. A 25 October 2014 Developmental Counseling Statement shows the applicant withdrew from the Fall 2014 OCS class due to injury, did not want to recycle in OCS, and was informed that IAW with paragraph 6-32f of AR 600-200 she must become qualified in a military occupational specialty (MOSQ) or reenroll in OCS within 180 days of her disenrollment for OCS. The applicant agreed with the counseling, and the counselor noted “Service member has reached 2-year mark without completing OCS and desires discharge.” k. The applicant acknowledged the initiation of separation action and waived her rights to counsel, to receive copies of documents, to an administrative separation board, and to submit a written statement on 16 December 2014. Her separation with approved by the Adjutant General of Kentucky on 31 March 2015. He directed her service be characterized as uncharacterized. l. An uncharacterized discharge is given to individuals who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. For the reserve components, it also includes discharges prior to completing initial entry training (IET). There are two phases -Basic Combat Training (BCT) and AIT. Because the applicant did not complete OCS or become MOSQ, she was in an entry level status at the time of her discharge and so received and uncharacterized discharge. This type of discharge does not attempt to characterize service as good or bad. m. Review of her records in JLV shows she has been awarded multiple VA service-connected disability ratings, including a 50% rating for PTSD. However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. n. It is the opinion of the ARBA Medical Advisor that neither a discharge upgrade nor a referral of her case to the DES is warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant’s contentions, the military record, medical advisory opinion and regulatory guidance. Evidence of record shows the applicant continued to serve in the USAR beyond her 2008 discharge date from the ARNG. The Board concurred with the advisory official finding the applicant did not complete OCS or become MOSQ, she was in an entry level status at the time of her discharge and received an uncharacterized discharge. The Board further noted the applicant acknowledged the initiation of separation action and waived her rights to counsel, to receive copies of documents, to an administrative separation board, and to submit a written statement on 16 December 2014. Based upon a preponderance of the evidence presented, the Board determined evidence presented insufficient to warrant a recommendation for relief. 2. The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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, USC, 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. AR 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. a. 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 body. b. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, in pertinent part, prescribed the medical fitness standards for enlistment, induction and appointment into military service, and retention and separation, including retirement. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides a listing of all medical conditions and specific causes for referral to a MEB. It states Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards would be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter did not mean automatic retirement or separation from service. Physicians were responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System according to the provisions of Title 10, USC, chapter 61, and Department of Defense Directive 1332.18. It set forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier was found unfit because of physical disability, this regulation provided for disposition of the Soldier according to applicable laws and regulations. It states: a. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 5. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and AR 635-40. 6. Title 38 USC, section 1110 (General -Basic Entitlement), states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 38 USC, section 1131 (Peacetime Disability Compensation -Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. 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 (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; 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. 9. 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 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. a. 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. 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. 10. Section 1556 of Title 10, United States 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. //NOTHING FOLLOWS//