BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090005953 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that although he did not report it in October of 1973, he was a rape victim while asleep in an upper bunk and the experience ruined many parts of his life, including bad hygiene, authority, intimacy, trust, activities, et cetera.  He states that he did not realize a discharge could be appealed until he started his appeal for compensation.

3.  The applicant provides no additional documentary evidence in support of this application.

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's military records show he enlisted in the Regular Army (RA) on 29 September 1973.  He was awarded military occupational specialty (MOS) 11B (light weapons infantryman) and was advanced to pay grade E-2, which is the highest grade he held during his tenure of service.

3.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions during the period 17 December 1973 to 23 May 1974 for willfully disobeying a lawful order on 14 December 1973 and for being absent without leave (AWOL) during the period 26 April to 17 May 1974.

4.  The applicant's records contain numerous counseling statements completed by his leadership during the period 19 March to 5 June 1974 indicating effort was extended to rehabilitate the applicant for his poor personal hygiene and maintenance of personal area, difficulty grasping training, poor performance, and his desire to be separated from the service. 

5.  On 10 June 1974, the applicant's commander recommended he be separated from the military service under the provisions of Army Regulation 635-200, chapter 13 (Unsuitability).  The commander indicated the applicant had been AWOL for 25 days and returned only to avoid being dropped from the rolls (DFR) of the Army as a deserter.  He further stated that the applicant's negative attitude toward the military was apparent in all of his actions.  He stated that the applicant was a lazy, sloppy, and clumsy man who did not have the desire or ability to become a Soldier and that his only desire was to get out of the Army.

6.  On 20 June 1974, the applicant acknowledged he had been counseled and advised of the basis for the contemplated action to separate him for unsuitability under provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He acknowledged he was afforded the opportunity of requesting counsel and declined the opportunity.  He did not elect to submit a statement in his own behalf.   

7.  On 27 June 1974, the separation authority approved the recommendation for separation under the provisions of chapter 13, Army Regulation 635-200, for unsuitability.  He directed the applicant be discharged from the service and issued a General Discharge Certificate.

8.  On 29 July 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13 by reason of unsuitability, with a general, under 
honorable conditions discharge.  The DD Form 214 issued to him shows he completed a total of 9 months and 10 days of active duty service with 21 days of lost time.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records indicate he was counseled on several occasions in regards to his poor personal appearance, personal hygiene, and attention to duty.  The applicant's records show he accepted NJP on two occasions.  He had 21 days of lost time due to being AWOL.  Such conduct would certainly warrant an administrative separation from the Army.

2.  Unfortunately, the applicant’s contention that he was raped while asleep in a bunk and that the experience ruined many parts of his life including bad hygiene, authority, intimacy, trust, activities, etcetera is not supported by the evidence of record.

3.  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 an honorable discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 for correction of the records of the individual concerned.



      __________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)                                         AR20090005953



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ABCMR Record of Proceedings (cont)                                         AR20090005953



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