IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140012523 


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 an upgrade of the character of service reflected on her DD Form 214 (Certificate of Release or Discharge from Active Duty) from "uncharacterized" to either "honorable" or "under honorable conditions."

2.  The applicant states, in effect, the following:

* she graduated from basic training with no physical problems and met all the requirements
* she went to Advanced Individual Training at Fort Lee, VA, where near the end of training she was a victim of a "MST" (military sexual trauma) situation that caused her great emotional distress
* on 26 October 1997, while suffering from an allergic reaction she was found unconscious, transported to the hospital, treated and discharged
* on 30 October 1997, she was in and out of unconsciousness with difficulty breathing and she was transported to the hospital and admitted for 5 days to determine the cause of her symptoms
* on 5 November 1997, it was determined that she was suffering from major depression and admitted to the psychiatric unit until 10 November 1997
* upon discharge from the psychiatric unit, she reported back to her unit and was instructed she had to pass her physical training assessment tests on or about 18 November 1997 – 8 days after discharge from inpatient stay and while still on medications
* she suffered side effects from the steroids and depression medication she was prescribed, including weight gain, muscle fatigue, achy bones, mood swings, and depression
* she was administered and failed three Army Physical Fitness Tests (APFTs) on 18 and 25 November and 2 December 1997, and after the last failure, she was told she would be discharged from the Army
* she was in no mental, emotional, or physical shape to take an APFT and she should have been discharged honorably because of her medical conditions 

3.  The applicant provided the following documents:

* a hand-written personal statement
* a copy of her DD Form 214
* 2 DA Forms 5501-R (Body Fat Content Worksheet), dated 11 February and 11 June 1997, which showed her within Army height/weight standards
* a memorandum, dated 3 December 1997, from the Training and Doctrine Command (TRADOC) Liaison Noncommissioned Officer (NCO) recommending approval of her separation for failing to meet APFT standards
* a DA Form 705 (APFT Scorecard) showing the results of eight different APFTs she took
* 47 pages of medical documentation
* a Department of Veterans Affairs (VA) Rating Decision, dated 12 October 2011
* a VA letter providing a disability appeal decision, dated 18 October 2011 

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.  On 11 February 1997, she enlisted in the Wisconsin Army National Guard (WIARNG) for 8 years.  Her DD Form 214 shows she entered active duty for training (ADT) on 10 June 1997.    

3.  Her records contain three DA Forms 4856 (General Counseling Form), administered during the period 18 November to 2 December 1997 that show she was counseled each time for failing the APFT.  The first recorded counseling indicates she was being placed in a special physical fitness group, in a rehabilitation effort, until she could pass the APFT.  It also stated that she was in a holdover status (the date of entry in this status was 16 October 1997).  She was told she would be given two additional chances and advised that continued failure to meet Army standards could result in administrative action being taken against her.  

4.  On 3 December 1997, she was counseled by the TRADOC Liaison NCO, Sergeant Major F, for failing to meet Army physical fitness standards on the last three APFTs while in a holdover status.  She was notified that she was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, for failure to meet minimum standards.  

5.  On 3 December 1997, the applicant's unit commander notified her he was initiating action to separate her from the Army under the provisions of Army Regulation 635-200, chapter 11, for unsatisfactory performance.  The specific reason for the proposed action was the applicant's failure to successfully pass the APFT.  The commander further stated the final decision in the applicant's case rested with the separation authority and, if approved, the applicant would receive an entry-level separation with uncharacterized service.  The commander advised her of her rights.  

6.  On 4 December 1997, the applicant consulted with counsel and acknowledged receipt of the notification of separation action.  She was advised of the basis for her contemplated separation and its effects, the rights available to her, and the effects of a waiver of her rights.  She also acknowledged that she understood that if her discharge was approved, she would receive an entry level separation with an uncharacterized service.  She further acknowledged that she may encounter substantial prejudice in civilian life if an under honorable conditions (general) discharge was issued to her and that she may apply to either the Army Discharge Review Board or the ABCMR for an upgrade of her discharge.  She acknowledged she realized that an act of consideration by either Board would not imply that her discharge would be upgraded.  She further elected not to submit a rebuttal in her own behalf.

7.  On 8 December 1997, the applicant’s immediate commander recommended separation from the Army under the provisions of Army Regulation 635-200, chapter 11, due to her inability to meet the minimum standard on the APFT and to adapt to the military with the issuance of an entry level separation.  He also recommended she not be transferred to the Individual Ready Reserve.

8.  On 8 December 1997, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an entry level separation.

9.  On 10 December 1997, the separation authority reviewed the proposed separation action and approved an entry-level separation (uncharacterized) in accordance with Army Regulation 635-200, chapter 11.  

10.  On 16 December 1997, the applicant was discharged accordingly.   The    DD Form 214 she was issued confirms she was discharged under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct, with an uncharacterized character of service.  This form further confirms she completed a total of 6 months and 7 days of net active service.  It also shows she was released from ADT and the Reserve of the Army and transferred to her ARNG unit. 

11.  On 16 December 1997, she was discharged from the WIARNG. 

12.  The applicant provided the following documents as evidence:

* 2 DA Forms 5501-R, dated 11 February and 11 June 1997, which show she was in compliance with Army height/weight standards
* a memorandum, dated 3 December 1997, from the TRADOC Liaison NCO recommending approval of her separation action for failing to meet APFT standards
* a DA Form 705 that shows the results of eight different APFTs she took
* 47 pages of medical documentation, which includes documentation that describes her condition called urticarial lesions (hives) along with diagnoses of major depression and anxiety
* a VA Rating Decision, dated 12 October 2011
* a VA letter providing a disability appeal decision, dated 18 October 2011 

13.  There is no indication she applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the version in effect at the time set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  It stated that when separation of a member in entry level status was 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 would be separated per this chapter.  
    
	a.  This separation policy applied to enlisted members who had completed no more than 180 days active duty of their current enlistment by the date of the initiation of separation, had demonstrated that they were not qualified for retention for one or more of the following reasons:  Could not or would not adapt socially or emotionally to military life; could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; had demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

     b.  Chapter 3 of this regulation describes the different characterizations of service.  It states that an uncharacterized separation is an entry-level separation. A separation will be described as entry-level if processing is initiated while a member is in entry-level status, except when a characterization of under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case, or when The Secretary of the Army, on a case-by-case basis, determines that an honorable characterization of service is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of the character of service reflected on her DD Form 214 from "uncharacterized" to either "honorable" or "under honorable conditions" was carefully considered.   

2.  The evidence shows she was counseled on numerous occasions regarding failure to meet minimum standards.  Her chain of command made numerous attempts to rehabilitate her, yet she failed to respond.

3.  She provided medical evidence that shows she suffered from a condition called urticarial lesions (hives) and was diagnosed with major depression and anxiety as a result of this condition that started on or about 30 October 1997.  She was in a holdover status following her release from medical care, which suggests her unit provided her the necessary recovery time for her condition. 

4.  She provided a DA Form 705 that shows the results of eight different APFTs she took both diagnostic and for record, which were administered during the period 20 June through 2 December 1997.  She did not pass any of the administered tests. 

5.  Unfortunately, the applicant provides no evidence of being an "MST" victim.
  
6.  A chapter 11 separation is used for entry-level Soldiers not qualified for retention for one of several reasons, including an inability to meet the minimum standards prescribed for successful completion of training because of a lack of aptitude, ability, motivation or self-discipline.  The evidence of record shows the applicant failed to achieve the minimum standards and as a result, she was discharged under the provisions of Army Regulation 635-200, chapter 11, for entry-level status performance and conduct.

7.  Army policy mandates that the service of Soldiers separated for entry-level status performance and conduct will be uncharacterized.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier did not serve on active duty long enough for his or her service to be rated.  As a result, there is no basis for changing a properly-assigned character of service.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20140003962



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ABCMR Record of Proceedings (cont)                                         AR20140012523



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