MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 29 April 2003
         DOCKET NUMBER: AR2002079133


         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:

Mr. John N. Slone		Chairperson
Mr. Thomas Lanyi		Member
Mr. Bernard P. Ingold		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)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by upgrading his undesirable discharge to general.

APPLICANT STATES: In effect, that he was sexually assaulted on two occasions during his military service. He contends that his discharge should be upgraded to a general discharge because of his mental state at the time. He also states that his failure to timely file should be waived because of his mental and emotional state during these past years.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a Memorandum of Consideration prepared to reflect the consideration of Docket Number AR2001060324 by the Army Board for Correction of Military Records (ABCMR) on 11 October 2001. The ABCMR denied the application based on failure to timely file.

The applicant provided a letter, dated 21 August 2002, from his counselor at the Huntington Vet Center in Huntington, West Virginia, supporting his application. The counselor attests that the applicant has been under care since 16 June 2001 and regularly attends individual therapy. The counselor states that the applicant is diagnosed with Post Traumatic Stress Disorder (PTSD), chronic, severe, secondary to military sexual trauma.

The counselor contends that it is her professional opinion that the PTSD is a result of childhood abuse exacerbated by the military sexual trauma the applicant experienced during his military service. She also contends that it is her professional opinion that the applicant's state of mind and extreme behavior after the rapes occurred are a direct result of the childhood abuse, which was compounded by the rapes he experienced, and emotionally devastated him so severely his ability to function normally ceased. She indicates that the emotional trauma of the childhood abuse and the military sexual trauma continue to have a devastating impact on the applicant's ability to function. She further states that the applicant was emotionally and mentally not able to file for the discharge upgrade within the time established by statute.

The counselor requests that the applicant's discharge be upgraded to general based on the information presented and states that it would be in the best interest of justice to approve this upgrade.

The applicant provided a letter, dated 11 March 2003, to the Board wherein he cites the Veterans Claims Assistance Act of 2000 and Section 5107 of Title 38, United States Code, paragraph (b) (Benefit of the Doubt). He contends that in dealing with the ABCMR and the local Veterans Affairs regional office, he has not been given this right.


The applicant’s submissions are new evidence which will be considered by the Board.

There are no medical records in the applicant's service personnel records which show the applicant was diagnosed with a mental or medical condition at the time of his discharge on 26 July 1976.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

The Veterans Claims Assistance Act of 2000 (Public Law 106-475) amended Title 38, United Stated Code, to reaffirm and clarify the duty of the Secretary of Veterans Affairs to assist claimants for benefits under laws administered by the Secretary, and for other purposes. Section 5107(b) (Benefit of the Doubt) of Public Law 106-475 provides that the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.




Army Regulation 15-185 also provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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 contention that his discharge should be upgraded due to his mental state at the time. However, there is no medical evidence of record available to the Board which shows that the applicant was diagnosed with a mental condition at the time of his discharge on 26 July 1976.

2. The Board also considered the applicant's contention that he has not been given the benefit of the doubt by the ABCMR in accordance with the Veterans Claims Assistance Act of 2000, Section 5107 of Title 38, United States Code, paragraph (6). However, this provision of law pertains to the duty of the Secretary of Veterans Affairs, not to the Secretary of the Army or the ABCMR.

3. The Board reviewed the applicant's record of service for his second enlistment which included one nonjudicial punishment, one special court-martial and 69 days of lost time. The Board determined that the applicant's record was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

4. 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.

5. 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

JNS____ TL______ BPI______ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002079133
SUFFIX
RECON	Yes
DATE BOARDED	20030429
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19760726
DISCHARGE AUTHORITY	635-200, PARA 13-5A(1)
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.