MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 November 2001
         DOCKET NUMBER: AR2001061641

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Deborah S. Jacobs		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Donald P. Hupman, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his general discharge be upgraded to honorable.

APPLICANT STATES: That he was raped by a civilian while he was on active duty. He contends that his superiors did not understand his sudden change of behavior; however, he could not tell them for fear of what his peers would say. He states that he asked for a discharge because he could not stand losing his manhood. He realizes that it was not the military’s fault but he just could not tell them.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the delayed entry program on 1 April 1983 and entered active duty on 12 July 1983. He was transferred to Germany on 14 January 1985 for duty as a motor transport operator.

On 31 May 1985, while in Germany, nonjudicial punishment was imposed against the applicant for making a false official document (sick call slip). His punishment consisted of a reduction to E-2 (to be automatically remitted if not vacated before 1 December 1985) and 14 days extra duty and restriction. On
1 July 1985, the suspended portion of the applicant’s punishment (reduction to
E-2) was vacated for being disrespectful to a commissioned officer.

On 15 July 1985, while in Germany, nonjudicial punishment was imposed against the applicant for failing to go at time prescribed to morning formation and disobeying a lawful order from a noncommissioned officer. His punishment consisted of 14 days of extra duty.

Between 22 May 1985 and 23 September 1985, the applicant was counseled on five occasions for various infractions which included missing work for four days, signing his own sick slip for quarters, disrespect to a noncommissioned officer, missing formations and failures to repair.

On 26 September 1985, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. The company commander cited that the applicant repeatedly missed formations and was disrespectful towards senior noncommissioned officers.

On 30 September 1985, the applicant consulted with counsel, acknowledged that he may encounter substantial prejudice in civilian life if a general discharge were issued and elected not to make a statement on his behalf.

The applicant’s company commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He cited the applicant’s failure to develop sufficiently to participate satisfactorily in further training, that his retention would have an adverse impact on military discipline, good order, and morale, and that his retention would be a disruptive influence in present or future duty assignments.

On 22 October 1985, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

The applicant was transferred to the United States on 30 October 1985.

Accordingly, the applicant was discharged on 31 October 1985 with a general discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He had served 2 years, 3 months and 19 days of total active service.

There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board considered the applicant’s contentions that he was raped by a civilian while he was on active duty and that this sexual assault was the reason for his sudden change of behavior which eventually led to his discharge. However, there is no evidence of record, and the applicant has provided no evidence, to support these contentions.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4. The Board reviewed the applicant’s record of service which included two nonjudicial punishments and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

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

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

DSJ____ EJA_____ DPH____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001061641
SUFFIX
RECON
DATE BOARDED	20011106
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19851031
DISCHARGE AUTHORITY	AR 635-200 Chapter 13
DISCHARGE REASON	Unsatisfactory Performance
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.