IN THE CASE OF:
BOARD DATE: 24 November 208
DOCKET NUMBER: AR20080014449
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 reconsideration of the Board's denial of her late husband's request to upgrade his Bad Conduct Discharge (BCD).
2. The applicant states there were serious mitigating circumstances which led to the discharge of her husband, the Former Service Member (FSM).
3. The applicant provides her late husband's death certificate, their marriage certificate, and six enclosures which she lists in a table of contents in support of her application.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070006135 on 16 October 2007.
2. In the Board's first consideration of the FSM's case, the Board found that the FSM had accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on two occasions, and was convicted by a special court-martial.
Based on the court-martial conviction, the FSM was given a BCD on 3 November 1970. The Board concluded that there was no available independent evidence showing that the FSM was molested or raped while on active duty, and that trial by court-martial was warranted by the gravity of the offenses charged.
3. The letter the applicant submitted was a continuation of the FSM's request for a Department of Veterans Affairs (VA) disability rating. In that letter the applicant tells of how both she and the FSM had been raped when they were young, her as a teenager and the FSM when he was in the stockade, and how the trauma of the rapes adversely affected their lives.
4. The applicant submits two letters from a psychiatrist to the VA dated 10 June 2008 in which the psychiatrist stated that he had been treating the FSM since 25 April 2002 and that the FSM reported symptoms of Post-Traumatic Stress Disorder (PTSD) due to being gang-raped while in the stockade on active duty. The psychiatrist also diagnosed the FSM with several other medical conditions. The psychiatrist attested to the believability of the FSM and outlined the PTSD symptoms reported by the applicant. The psychiatrist also stated that the FSM was in a 12-step recovery program for alcoholism.
5. The applicant also submitted a flier outlining what military sexual trauma is, a flier showing where to obtain military sexual trauma services, and a letter describing what an initial enlistee is subjected to in training.
DISCUSSION AND CONCLUSIONS:
1. While the applicant has submitted documents showing that the FSM reported being raped while on active duty, that admission was 38 years after his discharge.
2. Without evidence to show that the FSM reported being raped while on active duty or, possibly, immediately following his discharge, there is insufficient evidence to verify he was raped while on active duty.
3. However, whether or not the FSM was raped is not an issue in whether his discharge was appropriate. The FSM reported being raped while in the stockade. As such, it must be presumed that he had already been sentenced to a BCD. If the rape occurred after he had been sentenced to a BCD, it cannot be said that the rape caused the FSM's misconduct.
4. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X_____ ___X____ ___X___ 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 to amend the decision of the ABCMR set forth in Docket Number AR AR20070006135 dated 16 October 2007.
________X______________
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) AR20080014449
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