IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100009925


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  On behalf of the applicant, counsel requests reconsideration of the applicant's earlier petition to change her uncharacterized discharge to a medical discharge.

2.  Counsel states that:

	a.  changing the applicant's uncharacterized discharge to a medical discharge will afford her full Department of Veterans Affairs benefits;

	b.  the applicant was sexually, physically, and emotionally abused as a child;

	c.  it is their contention that the applicant was told to lie when she reported to her physical examination;

	d.  block 9 of the applicant's Standard Form 93 (Report of Medical History) shows she was told to change her answer from "yes" to "no" when she was asked if she ever attempted suicide;

	e.  the applicant was raped by a noncommissioned officer when she was talked into attending a party off base;

	f.  the applicant's officer in charge told her that the rape was her fault because she was not supposed to be off base;

	g.  the officer in charge dismissed the trauma the applicant experienced and punished her for missing bed check; and

	h.  at a minimum, the applicant's childhood history coupled with the fact that she was told to change the answers on her physical examination amounts to a fraudulent enlistment.

3.  Counsel provides the following new evidence:

* multiple health record document extracts
* Iowa Department of Social Services documents (8 pages)
* Iowa District Court documents (7 pages)
* four Keyers, Bennett & Kucera letters
* psychiatric evaluation, dated 8 December 1982
* two Foundation 2 letters
* emancipation agreement

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090013748 on 7 January 2010.

2.  During the original deliberations in this case, the ABCMR determined:

	a.  Although the applicant enlisted in the Army at the age of 17 years and 3 months, there was no evidence to indicate she was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

	b.  The applicant's commander initiated separation action against her based on her display of unsatisfactory performance shortly after she entered active duty, her unresponsiveness to counseling by her chain of command to meet Army standards, her intentional suicidal gesture to escape her obligation to the military, and because she lacked motivation and was unable to cope with the military lifestyle.

	c.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

	d.  With respect to the medical discharge, the applicant took an overdose of 20 assorted pills as a suicidal gesture.  After reviewing the facts and circumstances of the incident, an investigating officer determined the applicant's willful misconduct or neglect was the proximate cause of her injury and that it was not in the line of duty.  Following a review for legal sufficiency by a Judge Advocate attorney, the appointing authority ultimately approved a finding of "not in the line of duty due to own misconduct" on behalf of the Secretary of the Army.

	e.  Although the applicant was medically evaluated for various illnesses, she was never found medically incapable of performing her military duties and training or issued a permanent medical profile that would have warranted her referral to the Physical Disability Evaluation System.  Accordingly, she was never considered by a medical evaluation board, without which there would be no basis for referral to a physical evaluation board.  Without a physical evaluation board, the applicant could not have been issued a medical discharge or separated for physical disability.

	f.  The applicant failed to produce a single piece of evidence to substantiate a medical discharge.

3.  Counsel now provides multiple health record document extracts, dated between 4 June 1985 and 19 August 1985, that were available and considered during the original review of the applicant's case.  These documents include a Standard Form 93 which shows the applicant marked the "no" block and entered her initials in the "yes" block when asked if she ever attempted suicide.

4.  Counsel also provides Iowa Department of Social Services, Iowa District Court, Lynn County Youth Shelter, and other legal documents, dated between 25 March 1980 and 25 March 1985.  These documents combined show that as early as 12 years of age through 17 years of age the applicant alleged she was sexually molested by her adoptive father and as a result, she ran away from home, had been in and out of shelters, in foster care, and in and out of courts.

5.  The applicant's official military personnel file contains a DD Form 4 (Enlistment/Reenlistment Document) completed during the enlistment process.  Section D (Certification and Acceptance) shows the applicant acknowledged that her acceptance for enlistment was based on the factual information she gave at that time.  She further acknowledged that she could be terminated from service or be tried by a Federal, civilian, or military court and, if found guilty, possibly be punished.

6.  There are no documents on file that show the applicant made a claim to her chain of command, medical officials, military law enforcement, or to anyone that she had been raped by one of her noncommissioned officers while on active duty.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  The regulation defines entry-level status (ELS) for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service.

8.  Paragraph 3-7 of Army Regulation 635-200 contains guidance on the types of administrative discharges and characterizations of service.  It states that a separation will be described as entry level with service "uncharacterized" if processing is initiated while a Soldier is in an ELS.

9.  Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS.  This provision applied to personnel who could not meet the standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  An "uncharacterized" service description is normally granted to Soldiers separating under this chapter.  A general discharge is not authorized under ELS conditions.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty).  Chapter 2 contains item-by-item instructions for preparing the DD Form 214.  The instructions for item 24 (Character of Service) state that one of the following entries will be made in this item:  honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, or uncharacterized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel contend reconsideration should be given to change the applicant's uncharacterized discharge to a medical discharge.

2.  The new evidence provided in this case confirms that prior to the applicant's entrance on active duty she alleged she was sexually abused by her adoptive father and that, as a result, she resided outside of her home as a runaway, in shelters, in foster care, and that she was entered into the social services and judicial systems.  However, there is no evidence of record showing that any of these actions, while certainly unfortunate whether true or untrue, medically disqualified her for enlistment into military service or subsequent to her enlistment rendered her unfit for continuance on active duty.

3.  The applicant's enlistment confirms she was both physically and mentally cleared for military service.  Although it is now alleged that the applicant was told to lie on the Standard Form 93 when answering if she ever attempted suicide, there is no evidence in the applicant's official military personnel file and neither she nor her counsel provided any evidence to corroborate this claim.  The evidence of record does contain a DD Form 4 completed during the enlistment process which shows the applicant acknowledged that all of the information she provided at that time was true.

4.  Further, the evidence of record fails to include any evidence to corroborate the claim that the applicant was ever raped while she was on active duty or had suffered from a mental or physical injury as a result of such a traumatic event.

5.  Lacking any evidence to confirm the applicant suffered from a mental or physical condition that would have warranted her processing through the Army's Physical Disability Evaluation System, there is an insufficient evidentiary basis upon which to grant the requested relief in this case.  The evidence of record still confirms that the applicant's ELS separation was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case 

are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090013748, dated 7 January 2010.



      _______ _  X______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20100009925



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)