IN THE CASE OF: BOARD DATE: 30 January 2023 DOCKET NUMBER: AR20220004963 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), to show his service was characterized as "Honorable" rather than "Uncharacterized." APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) . DD Form 214 . Character reference letter . Letter from a Clinical Psychologist FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Discharge Review Board or the Army Board for Correction of Military Records (ABCMR). 2. The applicant states, during his time in the Army, he was hazed daily and ostracized because of his national origin. He experienced Military Sexual Trauma (MST), which led to Post Traumatic Stress Disorder (PTSD). He was an exemplary Soldier but was treated unfairly. He was distraught and did not trust anyone in his change of command. He requested discharge three days before graduating Basic Combat Training (BCT) and was discharged one week before graduation. His experience in the Army has negatively affected everything from relationships with his family to performance at work. He has not been able to trust anyone since his horrible experience in the Army. He has served this country honorably, has done what most do not do, and has done it with honor living the Army values every day. 3. On 19 January 2010, the applicant enlisted in the Regular Army for a period of 4 years and 19 weeks. He was assigned to Fort Benning, GA, for completion of training. 4. DA Forms 4856 (General Counseling Form) show the applicant was counseled on the following dates for the indicated reasons. He was repeatedly advised that failure to meet the standards set by the Army could and would result in administrative discharge from the Army. a. On 29 January 2010, for initial counseling on Army Values, policies, and standards. b. On 23 March 2010, for failure to follow an order or regulation by refusing to train and recommendation for separation. On 22 March 2010, the applicant informed his senior drill sergeant that his family missed him and wanted him out of the Army. As a result, he stated he wanted out of the military and refused to train. The drill sergeant had asked him numerous times to return to training, but the applicant continued to refuse. He advised the applicant that he was recommending he be administratively separated from service. c. On 25 March 2010, he recommended the applicant's separation for repeatedly disobeying orders to train, from both noncommissioned officers (NCO) and a commissioned officer. 5. A Form 8 (Initial Counseling Support Form), dated 25 March 2010, shows the applicant stated he was born and raised in . He was a single child after losing his sister to cancer. Two weeks ago, his parents had come to live with him and his wife in the U.S. His parents begged him to quit the Army because they could not handle him serving. That is why he refused to train. He is bilingual and would continue to pursue another career using his skills. 6. On 15 April 2010, the applicant's immediate commander notified the applicant that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 11, for entry level status performance and conduct. As the specific reason, the commander cited the applicant’s refusal to train. He further advised the applicant that he was recommending that he receive an entry level separation with uncharacterized service. 7. The applicant acknowledged receipt of the separation notification on the same date. He waived his right to consult with counsel and to make statements in his own behalf. He also elected not to have a separation medical examination. He was not a victim of sexual assault. 8. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 11, for entry level status performance and conduct. On 16 April 2010, the separation authority approved the separation recommendation and directed the applicant be discharged with an entry level separation (uncharacterized). 9. Orders and the applicant's DD Form 214 show he was discharged on 27 April 2010. His DD Form 214 shows he was credited with completion of 3 months and 9 days of net active service this period and contains the following entries in: . Item 24 (Character of Service) – Uncharacterized . Item 25 (Separation Authority) – Army Regulation 635-200, Chapter 11 . Item 26 (Separation Code) – JGA . Item 27 (Reentry Code) – 3 . Item 28 (Narrative Reason for Separation) – Entry Level Performance and Conduct 10. The applicant's record is void of evidence that shows he was a victim of hazing, MST, or diagnosed with PTSD during his period of service. 11. The applicant provides the following documents in support of his petition available in their entirety for the Board's consideration: a. A character reference letter, dated 20 October 2021, by a retired NCO that states he interviewed the applicant 10 years ago for a position at Fort Bragg, NC. This took place after events known as the , the applicant's home country, and after his attempt at a career with the Army. During the interview, some questions led to the applicant becoming emotional to the point of tears. This stemmed from a love of his homeland and pain over not being able to serve the America he had dreamed about and then became a citizen of. The applicant left and then watched it suffering from America, where he experienced an unexpected and intolerable torment of ridicule, shame, and being outcast by immature Soldiers during BCT. Since then, he has stayed in contact with the applicant and developed a growing friendship. He believes the applicant underwent sever moral injury and abuse in and around his period of service. b. A letter, dated 12 February 2022, from a Clinical Psychologist who states the applicant came to her practice with a previous diagnosis of PTSD, which she ultimately confirmed. She stated the applicant's experiences with military hazing and MST have haunted him and led to a significant decrease in his quality of life. 12. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status at the time of his separation. 13. Published guidance to the Boards for Correction of Military/Navy Records (BCM/NR) clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting correction of his DD214 to show service as “honorable” rather than uncharacterized. 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) Applicant asserts during his time in the Army he experienced MST which led to PTSD, in addition to hazing and ostracism due to his national origin. He was discharged 1 week prior to BCT graduation. He elaborated how these events have negatively impacted his functioning following discharge. (2) He enlisted into the Regular Army 19 January 2010. (3) He was counseled on multiple occasions to include failure to follow an order or regulation by refusing to train (23 March 2010); the prior day, applicant had informed chain of command he wanted out of Army and refused to train; on 25 March applicant was recommended for separation due to repeatedly disobeying orders to train from both an NCO and commissioned officer. (4) Record shows applicant stated he was born and raised in , he was a single child following death of sister, and his parents had begged him to quit the Army, leading to refusal to train. (5) Record shows applicant waived his right to consult with counsel, to make statements on his own behalf, to have a separation physical, and that he was “not a victim of sexual assault.” (6) DD214 shows he was discharged on 27 April 2010 under AR 635-200 Chapter 11, Entry Level Performance and Conduct, Uncharacterized. (7) The applicant's record is void of evidence that shows he was a victim of hazing, MST, or diagnosed with PTSD during his period of service. c. Supporting Documents All available supporting documents were reviewed. Character reference from a retired Army SFC dated 20 October 2021 referenced the impact of witnessing the in his homeland of from the US; the “intolerable torment of ridicule, shame, and being outcast” during his time in the Army; and how this has had a lasting impact on his functioning. A 12 February 2022 statement by a licensed clinical psychologist references a prior diagnosis of PTSD which she has confirmed in her work with applicant. The letter references “military hazing and military sexual trauma” what has led to significant decrease in quality of life. Per potential nexus, she comments “it is known that exposure to sexual trauma and being placed in situations which trigger an extreme fear response can lead to post-traumatic stress disorder. It is my professional opinion that it is more likely than not that (applicant’s) PTSD is a direct result of his time in military service.” A search of Army criminal file indexes revealed no records pertaining to applicant. Multiple counseling statements as described in ROP were reviewed and will not be summarized again. Memorandum dated 15 April 2010 indicates to the best of (commander’s) knowledge, applicant had not been victim of sexual assault resulting in unrestricted report. d. AHLTA The Army electronic medical record, AHLTA, was reviewed. Problem list/diagnostic history did not contain any psychiatric conditions or circumstances. A telephone consult dated 19 June 2017 (several years following his discharge from the Army) indicated he had phoned mental health clinic (Warren AFB) noting he was a non-drilling IRR member but would like to make an appointment to discuss PTSD issues; the contact references non-military related trauma related to his childhood in . An appointment was scheduled but was ultimately canceled due to ineligibility. Other references in AHLTA (e.g., 22 November 2016) indicate he had been a member of the USAF Reserves since 2011, and he apparently completed (or at least initiated) an Army commissioning physical in January 2018; available information did not reference any hx of PTSD or significant psychiatric concerns at that time. e. JLV Available VA records were reviewed via JLV. Records indicate applicant has a service connection of 70% for PTSD (90% overall). Compensation and Pension Evaluation dated 10 June 2022 resulted in diagnoses of Unspecified Trauma and Stressor Related Disorder, Major Depressive Disorder, and Panic Disorder without Agoraphobia with “occupational and social impairment with deficiencies in most areas.” The evaluation reports he was “hazed and ostracized by peers” with numerous difficulties since discharge to include difficulty holding a job. Evaluation noted that a specialist (who he referenced by name) made sexual comments toward him to include acknowledging he (the SPC) was homosexual and found the applicant attractive; the other soldier reportedly attempted to touch him and stated he would allow applicant to use his cell phone to talk to his family (implied as in return for giving in to sexual advances). Finally, applicant stated that during his last week prior to discharge, a fellow soldier “slapped him on his rear” (in the shower, while naked) and said “nice butt,” following which he did not shower until after discharge. Evaluator opined at the time that despite impact, these stressors did not meet Criterion A necessary to establish a full diagnosis of PTSD. A follow-up statement dated 8 July 2022 from the evaluator indicated “The Veteran’s trauma statement, unsuccessful military career, inability to maintain employment, paranoia about people around him, and difficulty maintaining relationships support a MST stressor event. The evidence of record is at least as likely as not consistent with the occurrence of the MST stressor events.” Mental Health Consult dated 14 February 2022 referenced a SPC who “requested sexual favors” from applicant and threatened to hold up discharge paperwork if he did not comply. He also described hesitation to take showers and sleeping in his uniform due to unwelcome sexual comments and inappropriate sexual behaviors from others. He indicates he never told anyone due to fear of retaliation and, at the time of evaluation, struggled with “flashbacks and nightmares,” difficulty trusting others, inability to hold jobs, poor sleep, binge eating, irritability, and relationship difficulties with wife and children. He was diagnosed with PTSD due to MST, and evaluating professional noted that his reported stressor “meets Criteria A for PTSD.” PCT (PTSD Clinical Team) Follow up Note dated 21 April 2022 resulted in diagnoses of PTSD and Depression. Veteran participated in PTSD-related group treatment on multiple dates to include (but not limited to) 28 April and 5, 12, and 26 May 2022. He apparently terminated care with the PCT program on 28 July 2022; encounter noted veteran “still holding a lot of rage and hate towards the VA/government….due to his recent service connection claims getting denied.” However, as noted above and at the time of this review, applicant is showing 70% service connection for PTSD. He has an established clinical/treatment diagnosis of PTSD, and the available Compensation and Pension Evaluation reports do include references to diagnoses associated with history of reported MST even though trauma-related diagnosis was unspecified trauma and stressor related disorder rather than PTSD. f. Other A review of HAIMS returned several relevant documents. A Report of Medical History dated 31 October 2019 shows answers to “no” on all aspects of item 17 (eg, nervous trouble of any sort, trouble sleeping, history of counseling, evaluation or treatment for a mental health conditions, depression and worry) as well as “no” to item 26, “have you ever been discharged from the military for any reason?” Report of Medical Examination (same date) did not reference any psychiatric concerns and found him qualified for service with 1 across all PULHES domains. A 21 February 2018 Memorandum from the Colorado Army National Guard shows applicant was selected to attend State OCS. A Memorandum from the Air National Guard dated 11 April 2018 indicated he had a potentially disqualifying condition (not specified) and that applicant opted not to enter into the Non-Duty DES for a fitness determination, with a date of projected separation 1 May 2018. A psychologist submitted a memo to Veteran dated 18 September 2017 (apparently at veteran’s request to document a prior contact discussing eligibility for VA care) and referenced applicant’s pre-enlistment history of persecution and witnessing violence and discrimination while living in ; a history of ostracism in Basic Training which triggered past feelings of persecution and led him to refuse to train; and repeated verbal sexual harassment from a “supervisor” while on alternative duties awaiting discharge “which he felt powerless to confront or report because of the person’s seniority over him and because he did not want anything to prevent or slow his exit from the Army…he reported that he denied any MH concerns upon discharge, also because he did not want to interrupt the discharge process.” 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 asserts a hx of MST and harassment resulting in psychiatric issues to include PTSD. 2. Did the condition exist or experience occur during military service? Yes. The applicant’s assertion is supported by service connection for PTSD and other medical documentation drawing nexus between his history of harassment/asserted MST and his psychiatric functioning. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due MST/harassment at the time of his discharge, and he has been awarded 70% VA service connection for PTSD. Lack of contemporary records associated with his claims are not sufficient to prove no such behavior (eg, MST and harassment) was directed toward the applicant. The medical advisor fully appreciates inconsistencies in his medical record regarding impact of these events on his functioning over time. However, the record is compelling for the experience of MST and a VA service-connection has been established; although his length of service prior to separation led to an uncharacterized discharge, the asserted circumstances prior to discharge warrant consideration of upgrade to honorable. RE Code 3 appears appropriate given his ongoing concerns regarding psychiatric functioning. 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. Governing regulation provides that a separation will be described as uncharacterized, if the separation action is initiated within the first 180 days of active duty service. As such, his DD Form 214 properly shows his service as uncharacterized. 2. 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 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 Board determined 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. 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 separation codes to be entered on the DD Form 214. At the time, this regulation prescribed the separation code "JGA" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, based on entry level performance and conduct. Additionally, the SPD/RE Code Cross Reference Table established that RE code "3" was a proper reentry code to assign to Soldiers separated under this authority and for this reason. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-9, in effect at the time of the applicant's separation, provided that a separation would be described as entry level with uncharacterized service if processing was initiated while a Soldier was in an entry-level status, except when: (1) a discharge under other than honorable conditions was authorized, due to the reason for separation and was warranted by the circumstances of the case; or (2) the Secretary of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. d. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in an 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, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. e. The character of service for Soldiers separated under this provision would normally be honorable, but would be uncharacterized if the Soldier was in an entry-level status. An uncharacterized discharge is neither favorable nor unfavorable; in the case of Soldiers issued this characterization of service, an insufficient amount of time would have passed to evaluate the Soldier's conduct and performance. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration 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, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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. //NOTHING FOLLOWS//