RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2005
      DOCKET NUMBER:  AR20050006556


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his under other than honorable conditions
discharge be upgraded.

2.  The applicant states that in his opinion his service was not
dishonorable.  The applicant further states the circumstances surrounding
his discharge were as a result of sexual trauma he experienced while in the
service.

3.  The applicant provided a copy of his Department of Veterans Affairs
appeal and copy of documents from his medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 29 November 1972, the date of his separation from active
duty.  The application submitted in this case is dated 25 April 2005.

2.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3 year
limit on filing to the ABCMR should commence on the date of final action by
the ADRB.  In complying with this decision, the Board has adopted the
broader policy of calculating the 3-year time limit from the date of
exhaustion in any case where a lower level administrative remedy is
utilized.

3.  The applicant’s record shows he enlisted in the Regular Army on 13 May
1971.  He completed basic training.  He was not awarded a military
occupational specialty (MOS).  The highest rank he attained while serving
on active duty was private/pay grade E-2.

4.  The record reveals a disciplinary history which includes his acceptance
of nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following occasions: 26
October 1971, for failure to go to his appointed place of duty; and on 8
November 1971, for failure to go to his appointed place of duty on 31
October 1971 and 1 November 1971.

5.  On 10 November 1972, charges were preferred against the applicant for
being absent without leave (AWOL) during the periods 6 January 1972 through
20 June 1972 and 28 June 1972 through 4 November 1972.
6.  On 14 November 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an under other than honorable conditions discharge, and of the
procedures and rights that were available to him.  Subsequent to receiving
this legal counsel, the applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

8.   The applicant provided a hand-written statement with his request for
discharge.  In this statement he essentially stated that he went AWOL
because he wanted to be with his married girlfriend to help her get a
divorce so that he could marry her.  He also stated the only reason he
joined the military was he was forced by his father.  The applicant
concluded that the Army has made his life "pure Hell" and that he would
continue to go AWOL.

9.  On 20 November 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 29 November 1972, the applicant was discharged
accordingly. The DD Form 214 he was issued confirms he completed a total of
8 months and 26 days of creditable active military service and that he
accrued 296 days of time lost due to AWOL.

10.  Records show the applicant's date of birth was 5 May 1954 and that he
was 18 years old at the time of his indiscipline.

11.  On 28 April 1975, the Army Discharge Review Board (ADRB) denied the
applicant's request for upgrade of his discharge to either a general
discharge or an honorable discharge.  The ADRB determined that the
undesirable discharge was proper.

12.  The applicant was notified of the ADRB decision by a letter dated 23
May 1975.

13.  The applicant submitted a statement in support of his Department of
Veterans Affairs claim.  The applicant stated that he was only 17 years old
when he was sexually assaulted while in the military.  He continued that he
was scared and ran and was subsequently brought back to the military.  The
applicant contends he was threatened, discharged, and promised that after
one year his discharge would be upgraded.  The applicant concludes that he
has been diagnosed with Post-Traumatic Stress Disorder (PTSD) which he
incurred as a result of sexual trauma.

14.  The applicant also provided a letter of support from a Veterans
Service Officer.  The Veterans Service Officer stated that the applicant
was diagnosed with PTSD which may have resulted from sexual trauma.  The
Veterans Service Officer stated the applicant informed him of the sexual
trauma and stated the reason he went AWOL was he did not want to face those
that committed the abuse.  The Veterans Service Officer continued that the
applicant also stated he did not report the incident because of threats and
personal embarrassment.  The Veterans Service Officer concluded although he
has not had an opportunity to review the applicant's official military
personnel file, he appears to be sincere and consideration should be given
to his discharge upgrade request.

15.  The applicant provided several pages of a medical report which shows
he was evaluated by a medical doctor at the Chillicothe Veterans Medical
Center.  This report states the applicant was sexually assaulted while in
the military.  The doctor diagnosed the applicant with PTSD and determined
he should be considered for 100 percent service connected disability.  The
doctor also stated that he was unable to determine whether the rape or the
fact that the applicant was unable to obtain an honorable discharge was
more traumatic to the applicant.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic
authority for the separation of enlisted personnel.  Chapter 10 of that
regulation provides, in pertinent part, that a member who has committed an
offense or offenses for which the authorized punishment includes a punitive
discharge may at any time after the charges have been preferred, submit a
request for discharge for the good of the service in lieu of trail by court-
martial.  A discharge under other than honorable conditions is normally
considered appropriate.

17.  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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his service was not dishonorable and that his
discharge was the result of sexual trauma he experienced while in the
service.

2.  Although the applicant provided medical documentation from the
Chillicothe Veterans Administration Medical Center that shows he was
sexually traumatized, this medical report was prepared over thirty years
after the fact.

3.  There is no evidence and the applicant has not provided sufficient
evidence that he was the victim of sexual assault during his military
service.  Additionally during the applicant's voluntary request for
discharge, he stated the reasons for his AWOL were that he wanted to be
with his married girlfriend.  The applicant did not state that he was
sexually assaulted nor, did he advise appropriate military authorities of
the alleged assault.

4.  Based on the foregoing, there is insufficient evidence to support the
applicant's contention that his indiscipline and subsequent discharge were
the result of sexual trauma.

5.  Records show the applicant was 18 years old at the time of his
offenses.  There is no evidence that indicates the applicant was any less
mature than other soldiers of the same age who successfully completed
military service.

6.  The applicant's record of service included two nonjudicial punishments
for failure to go to his appointed place of duty and failure to go to his
appointed place of duty.  Additionally charges were preferred against the
applicant for being AWOL for 296 days.


7.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general
discharge or an honorable discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 28 April 1975.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 27 April 1978.  However,
the applicant did not file within the 3-year statute of limitations and has
not provided a compelling explanation or evidence to show that it would be
in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JEV___  _CEM_ __  _LB_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                      __James E. Vick_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006556                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051026                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |11/29/1972                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Chap 10                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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