IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080009037 


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 general discharge (GD), under honorable conditions be upgraded to honorable and that his rank and grade be adjusted.

2.  The applicant states when he enlisted he assumed that physical and psychological dangers would come from the enemy, not from within his unit and from a person in authority who used his position to take sexual advantage of younger Soldiers.  Because of predatory advances by a unit noncommissioned officer (NCO), he needed to protect himself and had no recourse but to run away from his unit.

3.  The applicant states in his letter to his Representative in Congress that he enlisted in the U.S. Army Reserve (USAR) under the Simultaneous Membership Program (SMP) for service with the 187th Support Battalion, Hingham, MA and participation in the Reserve Officer Training Corps (ROTC) program at the University of Massachusetts.  He completed Basic Combat Training (BCT) in 1980 and separated from the USAR in order to enlist in the Massachusetts Army National Guard (MAARNG) for duty with the 1058th Transportation Company.  In 1981, he completed Advanced Individual Training (AIT) under the "split training option."  He then took and passed the MAARNG Officer Candidate School (OCS) Qualification Test in Quincy, MA.  He was never sent to OCS because unit orders were never published for his attendance.  While awaiting orders to OCS, he encountered a sexual predator, a sergeant (SGT), who preyed on at least 3 of the younger members of the unit and took advantage of his rank and position to ensure access to all three.  The SGT's behavior triggered memories of sexual victimization he had suffered as a child in a Catholic orphanage, and for his own safety, he stopped attending unit training.

4.  The applicant provides:

	a.  A copy of an 18 February 2008 self-authored letter to his Representative in Congress.

	b.  A copy of a 28 April 2008 letter from his mental health provider.

	c.  Three statements allegedly excerpted from "Perversion of Power" by Mary Gail Frawley O'Dea.


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.  The applicant enlisted in the USAR on 18 October 1980 for 6 years and the "split training option."  His enlistment contract states "Individual plans on joining ROTC/SMP after basic combat training."  He attended and successfully completed BCT from 13 June – 1 August 1981.  The following year he attended and successfully completed AIT from 23 June – 17 August 1982 and was awarded military occupational specialty 64C (Motor Transport Operator).

3.  On 27 October 1982, the applicant separated from the USAR and enlisted in the MAARNG for a period of 3 years, 11 months, and 21 days.  There is no evidence showing the applicant was participating in ROTC.  There is also no evidence to show the applicant took or passed the MAARNG OCS Qualification Test.  He attained the grade of specialist four/E-4.

4.  The applicant had unexcused absences from unit training on 16 November 1984, 15 January 1985, 12 February 1985, and 1 March 1985.  On each occasion, he was notified by certified letter that his absences from unit assembly were "unexcused."  Each letter was returned unopened as "unclaimed" or "moved, left no address."

5.  The applicant's commander issued a letter on 1 March 1985 stating the applicant had incurred his ninth unexcused absence on 9 February 1985.  The consensus opinion of the applicant's chain of command was that he [applicant] no longer wished to serve in the MAARNG.  The applicant responded to his commander's letter.  In a letter received by his commander on 21 February 1985, the applicant explained his 2-month absence from his unit.  He stated he was living in a condominium while doing security work.  He experienced financial problems and neglected his automobile payments.  When he visited his family at Christmas, his father told him that he [father] had paid the car payments and, by rights, took ownership of the car.  The applicant returned at a later date and retrieved the car from his parent's home.  The Monday following his retrieval of the car his mother and sister appeared at his work and demanded the car.  An ugly scene developed and his mother disabled the car by removing the distributor cap.  Thereafter, he states he was arrested for two old court cases he had neglected to resolve.  When he got out of jail, he found his mother had taken his car.  He also lost his condominium and job.  He stated he realized he should have contacted the unit much earlier, but pride prevented him from doing so.

6.  On 30 January 1985, the applicant was reduced to private first class/E-3 for misconduct.  On 9 February 1985, he was reduced to private/E-2 for misconduct.

7.  On 5 April 1985, the applicant was discharged from the MAARNG under the provisions of National Guard Regulation 600-200, paragraph 7-10r, by reason of unsatisfactory participation.  His service was characterized as general, under honorable conditions.  He was transferred to the USAR Control Group (Reinforcement) for completion of his statutory military obligation.  His NGB Form 22 (Report of Separation and Record of Service) was mailed to his last known address in Scituate, MA.

8.  On 17 October 1986, the applicant was honorably discharged from the USAR upon completion of his statutory military obligation.

9.  The applicant provided a statement from his mental health provider who indicates he is treating the applicant for post-traumatic stress disorder (PTSD) and depression.  The applicant has a childhood history of physical and sexual abuse that affected and impaired his ability to interact with his environment.  The applicant reported that he was placed in an absent without leave status following multiple, alleged, coerced and sexualized incidents that involved a SGT.  This incident triggered previous unresolved conflicts of re-victimization and trauma because the applicant was not in psychiatric treatment at the time of the incident. 

10.  National Guard Regulation (NGR) 600-200, then in effect, governed procedures covering enlisted personnel management of the Army National Guard.  Chapter 7 of NGR 600-200 covered, in pertinent part, reasons for discharge and separation of enlisted personnel from the State National Guard.  It provided, in pertinent part, that individuals could be separated for accruing
9 unexcused absences within a 1 year period.    

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.  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 applicant accrued 9 unexcused absences within a period of 1 year.  His unit notified him at least 4 times by certified letters that his unexcused absences could lead to punitive action and/or discharge.  All of these letters were returned as unclaimed. 

2.  After missing 2 months of unit assemblies, the applicant wrote a letter to the unit commander indicating that he had missed training because of transportation and/or car problems, losing his job and apartment.  The unit commander felt his explanation was invalid and did not excuse his absences.  

3.  There is no evidence that the applicant was a victim of sexual abuse while in the USAR or MAARNG.  If in fact true, the applicant should have cited this as the reason for his absences when he wrote his letter of explanation to the unit commander.  However, he specifically stated that he missed training assemblies because of transportation, housing, family, and financial problems.  The applicant's allegations are being made 23 years after his discharge, and in the absence of any corroborating evidence, administrative regularity is presumed in his discharge process.

4.  There is no evidence the applicant completed the OCS Qualification Test.  There is no evidence the applicant was a member of the SMP Program.  The applicant was properly reduced in grade on 2 occasions due to his misconduct.  These reductions were in accordance with Army regulations and were a result of his continued misconduct (i.e., absences).  Therefore, his grade is shown correctly on his DD Form 214.

5.  The character of the applicant's discharge is commensurate with the applicant's overall record of military service.  As such, the quality of his service was not consistent with the Army's standard for acceptable personal conduct and performance of duty by military personnel.  Therefore, there is no justification to grant the applicant's request.

6.  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.



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               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)                                         AR20080009037





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ABCMR Record of Proceedings (cont)                                         AR20080009037



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