IN THE CASE OF: BOARD DATE: 14 November 2022 DOCKET NUMBER: AR20220003990 APPLICANT REQUESTS: an upgrade of her uncharacterized discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision, 21 January 2022 * Two VA Summary of Benefits Letters FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 is seeking an upgrade of her uncharacterized discharge to honorable because she feels the outcome of her separation was unjust and unfair. She recently received a 100% service-connected VA rating for her post-traumatic stress disorder (PTSD) due to military sexual trauma (MST) with major depressive disorder, severe with psychotic symptoms. a. Before joining the military, she enjoyed living life and had plans of making a career in the United States Army. Ultimately, an erroneous recommendation was made, and she was processed for separation from the military immediately and forced to sign paperwork that she did not understand. She was inappropriately discharged after she suffered from military sexual trauma, complex mental emotion and psychological impairment a result of hostile actions by her military supervisors and peers. b. She became severely depressed and suicidal because she was accused of fabricating a story that her mother was shot and as a result, she began receiving threats that directly took a toll on her mental health. Her mother was shot and killed on 15 January 1999. She was told by her senior leaders they would make her death look like a suicide and she would end up like her mother if she went to anyone and spoke of what was happening. She would have flashbacks of her mother whenever she would hear gunshots in the military, and it constantly haunted her. She believes her leadership wrongfully interpreted her symptoms while she was in advanced individual training (AIT) as deliberate misconduct and elected to separate her from the military. c. She was subjected to sexual trauma/harassment when she was unwilling to go along with the sexual advances of the “higher military rank” such as drill sergeants which she believes contributed to her discharge. Females and males would suddenly come into the shower while she was alone and make verbal and unsolicited sexual advances. She would be called into areas without a battle buddy and be groped repeatedly. She suffered from retaliation after reporting assault and was in constant fear. She had no one to turn to at Fort Jackson because she was told they were all “in cahoots together.” As a result of speaking up for herself, she was transferred to another company. d. She identified additional issues she believes contributed to her discharge to include her sexual orientation. She became socially isolated from the military and Veteran's community which caused her to become homeless. She suffered from substance abuse because she went without treatment from mental injuries that took place while serving on active duty. The military dishonestly used administrative discharge guidelines in a manner that denied her the economic, educational, and medical support to which she believed she was entitled to. After speaking to a mental health therapist, she was purposely and improperly diagnosed and did not receive the help needed to become better after the horrible experiences she endured. After being abandoned by the military during her greatest time of need, she had a substantial decline in cognitive as well as emotional functioning. She continues to suffer from PTSD, social anxiety, acute stress, severe depression, and nightmares from training. 3. The applicant provides: a. A DD Form 214 for her active service from 7 September 2005 through 20 March 2006. b. A VA Rating Decision, dated 21 January 2022, notified the applicant she was granted 100% service connected disability for PTSD due to military sexual trauma with major depressive disorder, severe with psychotic symptoms effective 8 October 2021. c. Two VA letters with a summary of the applicant’s benefits noted she was considered to be totally and permanently disabled with a 100% combined service connected evaluation. * 26 January 2022 * 4 April 2022 4. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 7 September 2005. b. A DD Form 2808 (Report of Medical Examination), dated 18 August 2005, shows the applicant was undergoing an examination for the purpose of enlistment. The applicant’s clinical evaluation was marked normal and in block 74a (Examinee/Applicant) she was marked qualified for service. c. Her Enlisted Record Brief shows she was in training at Fort Jackson, SC. The applicant was assigned to C Company 369th AG Battalion and reassigned to A Company AG Battalion on 25 January 2006. d. A DA Form 4856 (Developmental Counseling Form), dated 7 January 2006, shows the applicant for lying to the chain of command about her brother being shot nine times while she was on block leave. The drill sergeants and company commander worked tirelessly to get her in to see a mental health counselor and were later informed that it was not her brother, but rather someone she grew up with. Her behavior was very deceptive and would not be tolerated. The applicant marked “agree” and signed the fom on 13 January 2006. e. A DA Form 3822-R (Report of Mental Status Evaluation), dated 9 January 2006, confirmed the applicant was referred for a mental evaluation. The practitioner noted in the remarks, the applicant was diagnosed in accordance with Axis 1, acute stress disorder due to traumatic events witnessed, and Axis III, headaches, and nausea. Axis IV also included phase of life circumstances, parent-child problems, and bereavement. The applicant was recommended for an expedited discharge and determined to be: * cooperative behavior and dull alert * fully oriented and tearful, depressed, and anxious * clear thinking process and normal thought content * she had the mental capacity to understand and participate in the proceedings * she was mentally responsible f. A DA Form 4856, dated 31 January 2006, shows the applicant was notified she was recommended for elimination from the U.S. Army for failure to adapt to military life and two attempted suicides within a 24 hour period. g. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) shows a flag was initiated on the applicant for elimination with an effective date of 31 January 2006. h. On 14 February 2006, the applicant’s immediate commander notified the applicant of his intent to separate her under the provisions of Chapter 11, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separation), for entry level performance and conduct. The reasons for his proposed action were because she had not adapted socially or emotionally to military life and had attempted suicide on two occasions due to her depressed state. She acknowledged receipt on the same day. i. On 14 February 2006, after declining consultation with legal counsel, she acknowledged: * receipt of the administrative briefing * the basis for her contemplated separation * the rights available to her and the effect of waiving said rights j. On 15 February 2006, the immediate commander initiated separation action against the applicant for entry level performance and conduct, she completed approximately 161 days of active service. The commander recommended an uncharacterized discharge and the intermediate commander concurred with the recommendation. k. On 9 March 2006, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 11, for entry level performance and conduct. l. Orders 074-1301, dated 15 March 2006, discharged the applicant from active duty with an effective date of 20 March 2006. m. On 20 March 2006, she was discharged from active duty with an uncharacterized characterization of service. Her DD Form 214 shows she completed 6 months and 14 days of active service. She was assigned separation code JGA and the narrative reason for separation listed as “Entry Level Performance and Conduct.” 5. On 21 July 2022, the U.S. Army Criminal Investigation Division (CID) provided information for the processing of this case. CID conducted a search of the Army criminal files indexes regarding the applicant’s claims regarding MST and no records were found. 6. There is no evidence the applicant has applied to the Army Discharge Review Board for review of her discharge within that board's 15-year statute of limitations. 7. By regulation (AR 635-200), a separation is described as an entry-level separation if processing is initiated while a member is in an entry-level status. This separation policy applies to Soldiers who enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve who are in entry level status and, before the date of initiation of separation action, have completed no more than 180 days of creditable continuous active duty or IADT by the date of separation and have demonstrated they are not qualified for retention. 8. By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 9. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 10. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her uncharacterized discharge to honorable. She contends she was inappropriately discharged after she suffered PTSD, related to MST. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 7 September 2005; 2) A DA Form 4856, dated January 2006, shows the applicant was notified she was being recommended for separation for failure to adapt and two attempted suicides within a 24-hour period; 3) She was separated on 20 March 2006 under provisions of AR 635-200, Chapter 11, for entry level performance and conduct. c. The military electronic medical record (AHLTA), VA electronic medical record (JLV), and ROP were reviewed. A review of AHLTA shows the applicant received BH- related treatment at Fort Jackson, SC, 5 January – 10 January 2006 for what is listed as “emergency reasons”. The treatment records are void of content and diagnosis; however, a separate record dated 10 January 20006 shows a description label of Sexual Abuse of an Adult. A DA Form 3822-R (Report of Mental Status Evaluation) dated 9 January 2006 shows the applicant diagnosed with Acute Stress Disorder (traumatic event), Phase of Life Circumstances, and Parent Child Relational Problems. In the additional comments section, the provider noted: Soldier presented as depressed, frustrated, confused, and hopeless evidenced by extreme emotions. It appears soldier is experiencing mixed emotions and is feels overwhelmed from her childhood trauma as well as normal phase of life circumstances. The anniversary to her mothers' death is a trigger as well. Soldier appears to be indecisive about remaining in the military at this time given the enormous amount of stress she feels. Telephone call to Acting First Sergeant indicated soldier is not a behavioral problem and has unlimited potential if given support to guide her through this difficult time. Potential for retention is good. However, given soldier's history of self destructive behavior, severe emotional instability, poor concentration, and ambivalence, soldier may be a training distraction. d. The provider recommended the applicant be administratively separated. e. It should be noted that the applicant did not appear to report a history of sexual trauma during her Mental Status Evaluation conducted on 9 January 2006. The Acute Stress Reaction (traumatic events) diagnosis appear to have been associated with a history of traumatic events and a recent trigger. Also, a CID memorandum dated 21 July 2022 states the CID conducted a search of the Army criminal files indexes regarding the applicant’s claims regarding MST and no records were found. f. A review of JLV shows the applicant is 100 percent service-connected for PTSD, secondary to MST she reportedly experienced during AIT. The applicant reported multiple and repeated instances of sexual trauma/harassment during initial entry training. She detailed numerous instances of inappropriate groping, having her showers interrupted by males and females intruding in making unwanted sexual solicitations/advancement, and receiving repeated sexual advances by drill sergeants. She was reportedly threatened by leadership that “they would make her death look like a suicide and she would end up like her mother if she went to anyone and spoke of what was happening”. Records appear to indicate the applicant’s first BH-related treatment with the VA occurred on 21 March 2022, after having been recently approved to receive treatment through the VA. She reported PTSD related symptoms, as outlined above, secondary to MST and a history of additional traumas, to include the loss of her mother and the shooting death of a friend. She reported the MST experiences were most salient and that current symptoms were associated with those traumatic experiences. Records show she received outpatient treatment, primarily pharmacological, 21 March 2022 – 24 October 2022. The session note dated 24 October 2022 showed the applicant scheduled to begin receiving evidence-based trauma-focused treatment. g. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant had a condition and experiences that mitigated the behaviors that resulted in her administrative separation. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 100 percent service- connected with PTSD secondary to MST she reportedly experienced during initial entry training. 2. Did the condition exist or experience occur during military service? Yes. Experiences and condition reportedly occurred while station at Fort Jackson, SC. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. A review of JLV showed the applicant reported a history of MST that reportedly occurred during initial entry training. The MST reportedly led to the applicant’s suicide attempt and subsequent administrative separation for failure to adapt. Suicidal ideation, depressive symptoms, diminished self-worth, and other symptoms the applicant reported during VA treatment visits are sequela of MST. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, the military service record, and regulatory guidance were carefully considered. In addition, the Board considered his medical records, VA documents provided by the applicant, the review and conclusions of the advising official, and published DoD guidance for liberal consideration of discharge upgrade request. One possible outcome was to approve the applicant’s request based upon guidance for consideration of discharge upgrade requests. However, the Board determined that they did not agree with the medical advisory opinion in that the applicant’s basis for separation was not negative, but solely based on her time in service which amounted to 161 days at the initiation of separation. Based upon a preponderance of the evidence, and notwithstanding the ecommendation of the advisory official, the Board determined the character of service the applicant received upon separation was not in error or unjust. 2. The governing regulation provides that a separation will be described as an entry- level separation, with service uncharacterized, for Soldiers who are in entry level status and, before the date of initiation of separation action, have completed no more than 180 days of creditable continuous active duty or IADT by the date of separation and have demonstrated they are not qualified for retention. As such, the DD Form 214 properly shows her service as uncharacterized. 3. 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. As a result, there is no basis for granting the applicant's request. 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separation), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. It states when separation of a member in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter. This separation policy applies to Soldiers who enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve who are in entry level status and, before the date of initiation of separation action, have completed no more than 180 days of creditable continuous active duty or IADT by the date of separation and have demonstrated they are not qualified for retention for one or more of the following reasons: * cannot or will not adapt socially or emotionally to military life * cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline * have demonstrated character and behavior characteristics not compatible with satisfactory continued service * failed to respond to counseling 3. Army Regulation 635-8 (Separation and Processing Documents) states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 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, 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, on 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. 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. 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 based on 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. 6. 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// ABCMR Record of Proceedings (cont) AR20220003990 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1