IN THE CASE OF: BOARD DATE: 19 October 2023 DOCKET NUMBER: AR20230003175 APPLICANT REQUESTS: * Upgrade of her general discharge under honorable conditions * Revision of her narrative reason for separation to show a medical discharge APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, her current narrative reason for separation suggests she was a Soldier who did not care, but the truth is she sustained sexual trauma during her military service; at the time, she was in her late teens. a. VA has since granted her service-connection and a disability rating for post- traumatic stress disorder (PTSD) due to military sexual trauma. She believes her character of service should be upgraded and her narrative reason for separation should reflect a medical basis for her discharge. b. In support of her request, the applicant provides a VA letter, dated in September 2017, that states the applicant is receiving a monthly VA entitlement based on her service-connected medical condition: PTSD due to military sexual trauma; the applicant's disability rating is 70 percent. 3. A review of the applicant's service record reveals the following: a. On 23 January 1982, after obtaining her parents' permission, the applicant enlisted into the U.S. Army Reserve (USAR) for 6 years; she was 17 years and 3 months old. On 18 June 1982, she entered initial active duty for training (IADT) to complete basic combat training (BCT), and her orders directed her to report to Fort Jackson, SC. On 22 August 1982, the Army released the applicant from active duty and returned her to her USAR Troop Program Unit (TPU). b. On 20 May 1983, Headquarters, Fifth U.S. Army orders directed the applicant to report to Fort Jackson, on 17 June 1983, for the completion of BCT and advanced individual training (AIT); on 21 June 1983, orders further assigned the applicant to the 9th Battalion, 2nd Basic Training Brigade. c. On 21 June 1983, the applicant's BCT first sergeant (1SG) completed a DA Form 4856 (General Counseling Form) pertaining to the applicant. (1) The 1SG reported that, on her arrival from the U.S. Army Reception Station, the applicant had declared she "didn't want to be here." The applicant explained that the last time she was on IADT, the 8th Battalion, 2nd Basic Training Brigade had recommended her for a Trainee Discharge Program (TDP) separation, but the person who was to sign her discharge was unavailable; as a result, the unit sent her back to her TPU. The applicant added that her TPU was in the process of separating her when they received the Fifth U.S. Army orders directing her to report Fort Jackson. (2) The applicant indicated she had had a number of physical problems during her last attempt to complete BCT, and they sent her home in a cast on her right foot; she ended up wearing the cast for 6 weeks. Additionally, the 1SG noted the 8th Battalion had started the TDP action because the applicant had displayed a lack of motivation and an extremely poor attitude. In addition, the applicant's TPU was separating her because she had said she no longer wanted to be in the military. d. On 21 June 1983, the USAR Liaison Noncommissioned Officer (NCO), Staff Sergeant (SSG), issued the applicant a DA Form 4856. (1) SSG summarized the information she had learned from the applicant's BCT 1SG and the applicant. SSG also reported on a conversation she had had with the applicant's TPU; the TPU stated they had tried to work with the applicant on a "one-to- one" basis, but the applicant could not attain unit standards. (2) During SSG 's counseling session with the applicant, the applicant indicated she could not complete the tasks required of her in BCT; as such, SSG recommended the applicant for administrative separation. e. On 9 July 1983, the applicant's BCT commander, Captain (CPT), counseled the applicant, using a DA Form 4856. (1) CPT stated the applicant had started BCT in June 1982, but after completing 7 weeks, the leadership pulled her from training due to a pending TDP; in addition to chronic medical complaints, the applicant had "severe emotional problems." (2) The applicant told CPT that, during her third week of BCT, she was hospitalized for three days after contracting the flu. Upon her return to her BCT unit, she attended "PD2 of BRM," pulled kitchen police six times, and performed work details for the remainder of her "BRM" and training cycle. (3) The applicant claimed her former 1SG in the 8th Battalion told her she (the applicant) would not be discharged after graduation but would instead be returned to her unit as an "incomplete." f. On 20 July 1983, the applicant's BCT commander advised her, via memorandum, that he was initiating separation action against the applicant, under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). As his basis, the commander informed the applicant of the following: (1) "You were identified as a candidate for discharge from the US Army UP (under the provisions of) Chapter 11 (Entry-Level Performance and Conduct (TDP)), AR 635-200, in July 1982. Discharge action under the same regulation was initiated but not completed prior to your return to your unit as an incomplete." (2) "You are now beyond the 179 day limit for Chapter 11 (TDP) to be applicable and you do not possess the motivation or attitude to complete basic training. Your performance is unsatisfactory." g. On 21 July 1983, after consulting with counsel (a Judge Advocate General officer), the applicant acknowledged counsel had advised her of the basis for her pending separation action and informed her of her rights and the effect of waiving her rights. The applicant requested counsel but opted not to submit statements in her own behalf. h. On 23 July 1983, the applicant's BCT commander submitted his recommendation to separate the applicant. He indicated his reasons for this action were that, in his view, the applicant would not develop sufficiently to become a satisfactory Soldier, the circumstances that led him to recommend her separation were likely to continue, and the applicant was unlikely to perform effectively in the future. The commander added, "SM (service member) has had more than ample opportunity to decide to Soldier. Elimination action has been initiated by her two other units but never completed. Any further rehabilitative efforts would only be a waste of time." i. On 28 July 1983, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 5 August 1983, orders discharged the applicant accordingly. The applicant's DD Form 214 shows she completed 1 month and 19 days of net active duty service, with 2 months and 4 days of prior active service. * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – "None" * Item 25 (Separation Authority) – "AR 635-200 CHAP 13" * Item 26 (Separation Code (SPD)) – "JHJ" * Item 28 (Narrative Reason for Separation) – "UNSATISFACTORY PERFORMANCE" 4. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 5. Published guidance to the BCM/NRs 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. 6. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her Under Honorable Conditions (General) discharge. She contends she experienced military sexual trauma (MST) and resulting PTSD, which mitigates her separation. 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 in the U.S. Army Reserve (USAR) on 23 January 1982; 2) On 20 July 1983, the applicant's commander initiated separation action, under the provisions of Chapter 13 for: A) previously being identified as a candidate for discharge under Chapter 11 but being beyond the 179 day limit for Chapter 11; B) the applicant lacked the motivation to complete basic training and performance was unsatisfactory; 3) The applicant was discharged on 5 August 1983, Chapter 13-unsatisfactory performance, with her service characterized as General Under Honorable Conditions. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed the supporting documents and the applicant’s military service and available medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional hardcopy civilian treatment records were provided for review. d. The applicant asserts she experienced MST and resulting PTSD while on active service, which mitigates her separation. There is insufficient evidence the applicant was diagnosed with a behavioral health condition while on active service. However, there was evidence she was experiencing difficulty during her time at initial active-duty training. She experienced multiple medical problems and was reported to have “severe emotional problems” in June of 1982. In addition, the applicant had repeatedly stated she did not want to participate in her training. A review of JLV provided evidence the applicant has been diagnosed with PTSD related to MST since 2017. In addition, she receives 70% service-connected disability for PTSD related to MST. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that mitigated her separation. In accordance with the Liberal Consideration Policy, the applicant’s contention of MST and PTSD alone is sufficient to be considered by the board in reaching its final determination. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends she experienced MST and resulting PTSD which contributed to her poor military performance and inability to complete her military training. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts she experienced MST and resulting PTSD while in active service. In addition, she receives service-connected disability for PTSD as the result of MST since 2017. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence the applicant experienced MST and resulting PTSD. She currently receives serve-connected disability for PTSD from the VA. In accordance with the liberal consideration memo, the applicant’s contention of MST alone is sufficient to be considered by the board in reaching its final determination. Lastly, it is recommended the applicant’s discharge be upgraded and the narrative reason for her separation be amended to Secretarial Authority. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA BH Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 2. The Board found sufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding her poor duty performance being mitigated by PTSD resulting from MST. Based on a preponderance of evidence, the Board determined the applicant’s character of service should be changed to honorable and the reason for her discharge should be changed to Secretarial authority. The Board further determined the evidence does not indicate the applicant should have been discharged for medical reasons. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing her DD Form 214 to show the following entries: * Item 24 – Honorable * Item 25 – AR 635-200 * Item 26 – JFF * Item 28 – Secretarial authority 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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. Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. (1) Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. (2) Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Section II (Secretarial Authority), paragraph 5-3 (Policy). The separation of enlisted personnel for the convenience of the Government was the prerogative of the Secretary of the Army and was to be accomplished only by his/her authority. The separation of any enlisted member of the Army under this authority will be based on Secretary of the Army determination that separation was in the best interests of the Army. c. Chapter 11 (Entry-Level Status Performance and Conduct (Trainee Discharge Program). This chapter set forth policies and procedures for the separation of personnel due to unsatisfactory performance or conduct (or both) while in entry level status. (1) For Reserve Component members who had not completed 180 days of continuous active duty service, entry-level status started at the Soldier's enlistment in the USAR and terminated 180 days after beginning an initial period of entry-level active duty training. (2) Reasons for separation were based on the Soldier's unsatisfactory performance or because of minor disciplinary infractions (or both) and were evidenced by: * Inability * Lack of reasonable effort * Failure to adapt to the military environment (3) This separation applied to Soldiers who had: * Voluntarily enlisted into the Regular Army or the USAR * Had completed no more than 180 days of active duty or "LADT" on their current enlistment * Showed they were unqualified for retention due to an inability to adapt, socially or emotionally, to military life; could not meet minimum standards because of a lack of aptitude, ability, motivation, or self-discipline; displayed character or behavior characteristics incompatible with military service * Failed to respond to counseling (4) Soldiers separated in an entry-level status were to receive an uncharacterized character of service. d. Under chapter 13: (1) Commanders could initiate separation action against Soldiers when, in the commanders' judgment: * they would not develop sufficiently to participate in satisfactorily in training and/or become satisfactory Soldiers; * the seriousness of the circumstances were such that the Soldiers' retention would have an adverse impact on the military discipline, good order, and morale; and * it was likely the Soldiers would continue to be disruptive influences in present and future assignments (2) Prior to the initiation of separation action, the regulation stipulated that commanders ensure Soldiers had received adequate counseling and rehabilitation. The regulation pointed out that military service was a calling different from any civilian occupation, and as such, commanders were not to consider separation solely due to unsatisfactory performance unless the leadership had made efforts to rehabilitate the Soldiers. (3) The regulation permitted separation authorities to furnish Soldiers separated under this provision with either an honorable or a general discharge under honorable conditions. 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 to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military 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. 6. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the preparation of the DD Form 214. The regulation directed DD Form 214 preparers to AR 635-5-1 (Separation Program Designators (SPD)) for completing entries for the Soldier's SPD and narrative reason for separation. 7. AR 635-5-1, in effect at the time, stated Soldiers separated under chapter 13, AR 635-200, received the SPD of "JHJ" and the narrative reason for separation of "Unsatisfactory Performance." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003175 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1