IN THE CASE OF:  

		BOARD DATE: 6 February 2014

		DOCKET NUMBER:  AR20130008499 


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 requests permanent physical disability retirement, retroactive retired pay, and a retired military identification card.

2.  The applicant states:

	a.  She was subjected to sexual harassment in 1989 and sexual assault (rape) in 1998.  Because of the history of sexual harassment and because of her position as a military intelligence (MI) officer with a Top Secret/Special Background Investigation clearance, she felt she had no other choice but to leave military service despite her desire to continue as a career officer and eventually retire.  The man who raped her was a field-grade officer and an instructor at the school where she was a student and a captain.

	b.  She tried to carry on despite the traumatic sexual harassment and sexual assault that occurred during her service.  She has been suicidal in the past.  She has since learned how to live with this to a certain degree, although she lives alone and has very little human contact with anyone except when she's at work.

	c.  She was a victim and now is a survivor of both blatant sexual harassment and rape – and although she has coped to the best of her ability, it doesn't give back the military career she loved and lost.  If she were faced with either situation today, she can't say whether she would seek legal action or not, but she would certainly seek immediate assistance in the form of counseling so she could stay in the Army.

	d.  She is willing to report for any Army physical/mental examination and or personal hearing if the Board feels it is warranted.

3.  The applicant provides:

* 9-page statement
* service medical records, dated 20 September 1988-14 September 1999
* five character-reference letters
* Department of Veterans Affairs (VA) Rating Decision, dated 16 December 2003
* VA Rating Decision, dated 24 July 2007
* military personnel records, dated 11 January 1990-30 June 2000
* release authorization, dated 11 August 2013, for Behavior Health Assessment Notes, dated 10 September 2002
* VA Release of Information with Progress Notes, dated 9 July 2013

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. 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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Following prior Regular Army enlisted service, the applicant was appointed as a U.S. Army Reserve second lieutenant on 31 August 1992 and entered extended active duty.  She was appointed in the Regular Army on 6 August 1993.  She was promoted to captain effective 1 September 1996.

3.  Her DA Form 4037 (Officer Record Brief), dated 28 December 1999, shows she was assigned to units at Fort Gordon, Georgia, and in Germany.

4.  On 30 June 2000, the applicant resigned her commission.  She completed 7 years, 10 months, and 10 days of net active service during this period.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was awarded or authorized the Army Commendation Medal (3rd Award), Joint Service Achievement Medal, Army Superior Unit Award (2nd Award), National Defense Service Medal, Armed Forces Service Medal, Armed Forces Expeditionary Medal, Overseas Service Ribbon (2nd Award), and North Atlantic Treaty Organization Medal.  The narrative reason for separation is shown as "MISCELLANEOUS/GENERAL REASONS."

5.  The applicant provided the following documentation in support of her request:

	a.  In a 9-page self-authored statement she provided a chronological narrative describing how she was sexually harassed while serving as a sergeant and how that left her distrustful of the Army system for dealing with victims of sexual harassment.  She went on to graduate from Officer Candidate School; she became an MI officer and was assigned to Germany.  Following a deployment to Bosnia, she was transferred to Fort Huachuca, Arizona, to attend the MI Officer Advanced Course.  There she began dating Major (MAJ) D____ C____, an instructor at the school.

		(1)  She broke off the relationship with MAJ D____ C____.  He did not want to split up and started following her.  He snuck into her garage and it seemed that she would see his vehicle "every time I turned around."  On the night she graduated from the advanced course he entered her house through an unlocked door and raped her.

		(2)  She didn't report the rape because of her prior experience with the sexual harassment and, as he was a field grade officer and highly-respected instructor while she was just a student, she didn't think she would be believed.

		(3)  She transferred to Fort Gordon, Georgia.  She bought a house and was happy to be getting on with her life.  At first she loved her new house and new assignment, but soon realized she was not alright.  She began having panic attacks and didn't feel safe.  She feared MAJ D____ C____ would transfer to Fort Gordon also.  She began having erratic behavior at that time.

		(4)  She later received a compassionate reassignment to the Military Entrance Processing Station (MEPS) in Tampa, Florida, because of her ill father.  She didn't feel safe there because MI officers were assigned to nearby MacDill Air Force Base.  Her erratic behavior continued.  She feared seeking help because she thought any kind of psychiatric treatment would negatively impact her security clearance and her career as an MI officer.

		(5)  She started considering leaving the Army because she knew she did not have the confidence to take a command.  Shortly after she was advised by MI Branch that she would have to take a command, she submitted her resignation.
		(6)  It never occurred to her to go through the medical evaluation board/physical evaluation board (MEB/PEB) process.  She did not know that what she had was a disability.  She had a knee injury and a foot injury and a few minor disabilities, but it never occurred that she was suffering from a psychiatric disability as well.

		(7)  Following several months of unemployment, she was offered a position in the VA Regional Office in Huntington, West Virginia.  Although she loves the mission, she often struggles on a personal level with co-workers and claimants.  She lives alone with no neighbors.  She cannot tolerate being controlled in any way and at times has extreme emotional reactions to what would normally be considered trivial issues.

		(8)  She was first treated for post-traumatic stress disorder (PTSD) in 2001.  She went for general therapy for several years and saw a private psychiatrist, but the VA cancelled the authorization and she hasn't been back since.  She has been on medication for 12 years.

		(9)  As she looks back over the past 15 years, she realizes she should have sought psychiatric counseling immediately following the rape so she could have learned how to deal with it from the start.  She would also have gone through the MEB/PEB process where she would no doubt have been medically retired.

		(10)  In addition to PTSD, she has several other disabilities which would have been addressed by the MEB/PED process, including bilateral knee and feet problems.  She also had problems with ganglion cysts and temporomandibular joint (TMJ) disorder.  The worst physical problem was pes plantar fasciitis which began after just a few months in the Army and bothered her throughout her military career.  She was given many temporary physical profiles over the years and had orthopedic boots.

		(11)  In summary, she requests amendment of her discharge to a disability retirement and entitlement to retirement benefits, including retired pay.  She is including VA Rating Decisions which awarded her 50-percent disability for PTSD as well as other disabilities, combining to 80 percent.

	b.  Copies of service medical records for the period 20 September 1988 to 14 September 1999 show she was seen by medical authorities for ganglion cysts, feet pain, plantar fasciitis, ankle injury, and TMJ.  A DA Form 3349 (Physical Profile) was issued for the period 12 November to 12 December 1998 for left knee pain.  She was limited to run at her own pace.

	c.  Three letters from military officers attest to her fine military career as an MI officer and being an inspirational leader.  Two of those letters reveal the applicant left military service because of the sexual assault and rape.

	d.  Two letters from the applicant's long-time personal friends relate that the applicant confided in them about the abusive relationship she was in with another military officer and how he stalked her after she ended the relationship.  He raped her and she did not report the assault because of fear of how the Army would handle it.

	e.  A VA Decision Review Officer Decision, dated 16 December 2003, shows she was granted 100-percent disability effective 5 June 2002 based on surgical or other treatment necessitating convalescence.  She was granted a 10-percent disability rating after 1 August 2002.  She was also granted 10-percent disability rating for a surgical scar on her left foot, an earlier effective date for service connection for PTSD and right knee arthralgia with history of tendinitis, and 
10-percent disability rating for left knee pain.

	f.  A VA Rating Decision, dated 24 July 2007, shows the 50-percent disability rating for PTSD was continued.

	g.  Copies of her military personnel records covering the period 11 January 1990 to 30 June 2000 include:  certificate of achievement; officer and noncommissioned officer evaluation reports; letter of commendation; letters of recommendation for Officer Candidate School; award citations; DD Form 214 for the period ending 30 June 2000; approval of her unqualified resignation; and Officer Record Brief, dated 28 December 1999.  Her officer evaluation report (OER) for the period ending 31 May 2000 shows she was rated “outstanding performance, must promote” and “Best Qualified.”  One senior rater comment was “she demands excellence and achieves it routinely.”

	h.  A release authorization, dated 11 August 2013, for Behavior Health Assessment notes, dated 10 September 2002, show the applicant was self-referred and stated she had been raped and stalked a few years ago.  The applicant describes the events relating to the stalking and rape and how her life has been since then.

	i.  A VA Release of Information Request, dated 9 July 2013, for Examination and Progress Notes, dated 9 July 2002, show she was diagnosed with PTSD.

6.  Her service medical records are not available for review.

7.  There are no available records showing any of her medical issues caused her to be unable to perform her assigned duties.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  It provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of her or her office, rank, grade, or rating.

	b.  It further provides that that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she was retired by reason of permanent physical disability with entitlement to retroactive retired pay and a retired military identification card.  She alleges she was sexually harassed and raped while serving on active duty and she has other physical issues.

2.  The available evidence shows the applicant was seen for various medical issues while serving on active duty, including ganglion cysts, feet pain, plantar fasciitis, ankle injury, and TMJ.  

3.  However, there is no available evidence showing the applicant had any medical or psychiatric condition incurred while entitled to receive basic pay that was so severe as to render her medically unfit for retention on active duty.  Her last OER shows she was highly effective in performing her duties.

4.  The applicant has not provided sufficient evidence to show an error or injustice occurred in her case.

5.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _____________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)                                         AR20120011170



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ABCMR Record of Proceedings (cont)                                         AR20130008499



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