IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080006934 


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 that his Undesirable Discharge be upgraded to a general discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that he was brutally sexually assaulted in the Army for fear of his life and he went absent without leave (AWOL).  After his discharge from the Army, he served honorably in the U.S. Navy for 7 years. 

3.  The applicant provides a self authored statement, dated 12 February 2007, describing his mental health disorders.

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 16 October 1975, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 13B (Field Artillery Crewman).  He attained the grade of private/E-2.  .  

3.  A review of his official record shows the applicant went AWOL from
18 – 23 May 1976 and 7 - 14 June 1976.  His last period of AWOL was from
17 June – 26 July 1976.

4.  On 3 August 1976, the applicant was charged with AWOL (17 June – 27 July 1976). 

5.  On 4 August 1976, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  

6.  The applicant submitted a lengthy statement in his own behalf indicating that he had an extremely strong desire to receive a Chapter 10 discharge.  He indicated that he realized what a Chapter 10 discharge was, and what the disadvantages of this type of discharge were.  He stated that when he enlisted, his recruiter had him believing that the Army would be 100 percent to his advantage, and that he would really like his first duty station.  However, during his short stay at Fort Leonard Wood, he could very vividly see that he was not going to be any good to the Army and that the Army was not going to be any good to him.  He developed a strong dislike towards the Army, and he had absolutely no desire whatsoever to fulfill his obligation to the Army.  When he arrived at Fort Sill, his attitude was the same, and his doubts and dislike towards the Army were strongly reinforced.  He was assigned to Fort Lewis and still did not like the Army.  He then received a letter from his fiancé telling him she was fed up with the Army and that she had found another guy.  At that point, his dislike of the Army turned into pure hatred.  He had many personal problems and everything was building up into one big raging inferno inside his head.  He stated that he lacked discipline, was unable to take orders; he had lost his fiancé; his little brother was strung out on drugs, he lacked money, and all of his family problems led to his discharge.  He further stated that he was totally unable to adapt to military life, and would never be able to because he did not believe in killing people and if they ever went to war, he would not fight.  He went AWOL again in an attempt to get out of the Army the fastest way possible.  The Army screwed up his life, he was too immature, too wild, and too much of a trouble maker and he hated the Army.  

7.  On 31 August 1976, the separation authority approved the applicant's request for discharge and directed he be issued an Undesirable Discharge. 

8.  Accordingly, the applicant was discharged on 3 September 1976 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions on his DD Form 214 (Report of Separation from Active Duty).  He was credited with 8 months and 24 days of total active service and had 54 days of lost time due to AWOL.  

9.  The applicant provided a self-authored statement describing his mental health disorders.  He indicates that he has occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking, or mood due to symptoms of suicidal ideation and obsessional rituals, which interfere with routine activities.  He also suffers from depression, near-continuous panic, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene and is a persistent danger of hurting self and others.  He has frequent persistent nightmares about being physically assaulted, sexually abused, and severely physically and mentally abused during "shellback" hazing (sic).  He has frequent persistent flashback, both audio and visual of traumatizing incidents that happened to him while he served in both the Army and Navy.  His mental disorders are documented and maintained by his psychiatrist at the West Salem Clinic Mental Health in Salem, Oregon.  He is also on Social Security Disability due to the severity of his mental disorders which in his opinion were caused by or aggravated due to his military service.  While in the Navy, he was severely hazed to include cruel and unusual beatings of the lower back area with pieces of firehouse.

10.  Army Regulation 635-200 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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, an UOTHC discharge is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, 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.

12.  Army Regulation 635-200, paragraph 3-7b, 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.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant went AWOL on 3 occasions, and was ultimately charged with the last offense of AWOL.  

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  

3.  At the time the applicant voluntarily submitted his request for discharge in lieu of trial by court-martial, he provided a lengthy written statement delineating all the reasons why he went AWOL, why he would go AWOL again, why he hated the Army, how the Army screwed up his life and created many personal problems for him, and why he wanted to be discharged as expeditiously as possible because he had no desire to fulfill his contractual obligation.  However, the applicant did not raise the issue of sexual assault, and there is no evidence in his official record to show he was sexually assaulted or any medical evidence to support this contention.  He only raises this issue 31 years after his discharge as a mitigating factor to his AWOL, however, when he had the opportunity to present this evidence in mitigation, he failed to do so.  As such, his contentions are not sufficiently mitigating to warrant a change in his discharge.  

4.  The applicant initially states that he served successfully for 7 years in the U.S. Navy; however, in his self-authored statement, he contradicts himself by stating that he sustained cruel and unusual hazing while in the Navy.  Therefore, it is unclear whether the applicant served successfully or not in the Navy.

5.  The applicant's statement regarding all his mental health conditions is noted; however, he did not provide any medical evidence substantiating his contentions. In order to support his issues, it is incumbent upon the applicant to provide the medical evidence to support his contention that the Army caused his mental condition and that he went AWOL because he was sexually abused.  He has failed to provide any evidence to corroborate his contentions.

6.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service. 

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.


      ___        XXX                ___
                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)                                         AR20080006934





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ABCMR Record of Proceedings (cont)                                         AR20080006934



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