IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080015876 


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, in effect, reconsideration of his request that his undesirable discharge be upgraded to a general discharge.

2.  The applicant essentially states that he did report the sexual assault he says occurred to him while in the Army, and that it does not surprise him that his first sergeant did not enter it into his file, as his first sergeant denied it happened and accused him of being a homosexual.  He also states, in effect, that sexual assaults in the Armed Forces are under reported or not reported, and that often in the military, the victim is not believed and is harassed by superiors when they report a sexual assault.  He further contends that he was assisted with and coached by a legal clerk when he wrote the lengthy statement on his behalf to get out of the Army, and that he was ordered by his first sergeant not to mention the sexual assault in his statement.  He also rebuts the portion of the discussions and conclusions in his original proceedings in which it was stated that it was unclear whether he served successfully in the Navy.  Also he states that incidents that happened to him in the military have haunted him since they happened, and that he has lost three wives and has been fired from approximately 21 jobs due to actions caused by mental disorders that were aggravated by his military service.

3.  The applicant provides a self-authored letter, dated 12 September 2008, his DD Form 214 (Certificate of Release or Discharge from Active Duty) for his active duty service in the United States Navy from 17 May 1980 to 16 May 1984, a Certificate of Reenlistment, dated 17 May 1980, a letter of commendation, dated 5 April 1980, his Honorable Discharge Certificates from the United States Navy that were issued to him on 16 May 1980 and 16 May 1984, and an article, dated 2 August 2008, from an alternative news internet site which reported an alleged cover-up by the Department of Defense (DOD) regarding sexual assault in the military in support of this application.  Although the applicant indicated that he provided a copy of a publication his command put out about hazing that was signed by his commanding officer, this document was not among the documents received with his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006934, on 10 July 2008.

2.  The applicant provided a self-authored letter, dated 12 September 2008, and an article, dated 2 August 2008, that is new evidence that will be considered by this Board.

3.  On 16 October 1975, the applicant enlisted in the Regular Army.  On 3 August 1976, charges were preferred against him charging him with being absent without leave from 17 June through 27 July 1976.  On 4 August 1976, he requested discharge for the good of the service.  With his request for discharge, he submitted a lengthy statement in his own behalf indicating that he had an extremely strong desire to receive a chapter 10 discharge.  He stated that, in part, that he saw that he was not going to be any good to the Army and the Army was not going to be any good to him.  He receive 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.  

4.  On 3 September 1976, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with a discharge characterized as under other than honorable conditions.

5.  In his self-authored letter, dated 12 September 2008, the applicant essentially stated that he went to his command for help after he was sexually assaulted, but was accused of being a homosexual, and that his command denied that an incident occurred.  He also stated that his command would not transfer him to another unit or move him out of the room he shared with the attacker who raped him.  Additionally, he contends that he was going to be court-martialed for an

 AWOL charge that others in the Army were accepting nonjudicial punishment for, and believes that his court-martial charges were retaliation for reporting a sexual assault that his command covered up.  He also claimed that one in every ten men in the military is a victim of sexual assault, and he does not understand why he was not believed.  

6.  The applicant provided an article, dated 2 August 2008, from an alternative news internet site which reported an alleged cover-up by the DOD regarding sexual assault in the military.  The applicant appears to have highlighted portions of this article which reported that a female Soldier had gone AWOL for her own protection when the Army would not move her out of the unit to which both she and her rapist were assigned to.  He also highlighted information which shows that the Army Deputy Chief of Staff G-1 reported that 12 percent of reported rapes in the military were from male personnel.  He further highlighted a statement in which a Member of Congress essentially stated that one in 10 men is raped while in the military.  Additionally, he pointed out a statement allegedly made by the director of the Government Accountability Office (GAO), in which she stated that the GAO believed rates of sexual assault currently used by the DOD are low because many military personnel do not want to report what happened and suffer the gossip, harassment, and stigma prevalent in units when confidential reporting is compromised.  She also allegedly stated that in a survey of 3,757 people on 14 military installations, 103 said they had been sexually assaulted in the past year and had reported it, while 52 others said they did not report the sexual assault.  

7.  Army Regulation 635-200 (Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, 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 trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate.

8.  Paragraph 3-7a of Army Regulation 635-200 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.  

9.  Paragraph 3-7b of this same regulation 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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for upgrade of his undesirable discharge to a general discharge should be reconsidered.  

2.  While it is clear that the applicant claims that he was raped by his roommate, he still failed to provide any evidence to support this claim.  The fact that he stated that he told his command of the incident but that his command did nothing was noted.  However, if in fact that the applicant was raped by his roommate and his command did nothing after he reported it, he had the right to go to the next higher level in his chain of command to report the incident.  He also could have and should have made a report to the Military Police or sought medical attention at his troop medical clinic, which likely would also have generated a report to the Military Police.  

3.  Additionally, the applicant's contention that he was ordered by his first sergeant not to mention the sexual assault in his statement in support of his request for discharge was considered.  However, if in fact the applicant was ordered by his first sergeant not to mention a sexual assault, he had the right to disobey that order, as it was essentially an unlawful order in that it would have interfered with his private rights and personal affairs.  

4.  Further, his contention that he was assisted with and coached by a legal clerk when he wrote the lengthy statement on his behalf to get out of the Army was considered, but not found to have any merit.  There was no regulatory requirement for him to provide a statement in his own behalf at the time he requested discharge in lieu of trial by court-martial; however, he completed a lengthier-than-average statement in his own behalf.  There is no ambiguity in this statement of his disdain for the Army and his desire to be discharged as soon as possible.  However, while he may in fact have been assisted by a legal clerk with this statement, the specificity of his personal issues and reasons for requesting discharge do not suggest that he was "coached" into making any statement that he did not wish to make.

5.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.

6.  Based on the applicant's record of indiscipline, his 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 an honorable or general discharge.  

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 AR20080006934, dated 10 July 2008.




      _______ _ 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)                                         AR20080015876



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ABCMR Record of Proceedings (cont)                                         AR20080015876



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