IN THE CASE OF:	

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100000304 


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 discharge.

2.  The applicant states he needs the discharge upgraded so that he can receive mental health care from the Department of Veterans Affairs (VA).  He was sexually assaulted twice, once by a sergeant first class and a second time by two Soldiers at Fort Hood, Texas.  He did not report these incidents for fear of retribution by the perpetrators and ridicule by his peers.  He believes these incidents led to his anger, frustration, drinking, drugging and impacted his ability to serve.  He had no one to turn to and he did not know how to handle this trauma.  He also relates that while in the Service he sought help from mental health and he was treated differently thereafter.  He seeks compassion in the form of a general discharge so that he may be able to receive help from the VA.

3.  The applicant indicates he is submitting character references in support of his request, but they are not attached to the 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.  On 30 July 1980, the applicant enlisted in the Regular Army with parental consent at age 17 years and 8 months.  He was not a high school graduate.  He completed one station unit training at Fort Sill, Oklahoma and he was awarded military occupational specialty 82C as a field artillery surveyor.  

3.  He was transferred to Fort Hood, Texas on 21 November 1980 and advanced to private first class, pay grade E-3 on 1 August 1981.

4.  The applicant received nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 1 September 1981 for drunk driving and on 1 December 1981 for using provoking words. 

5.  On 4 January 1982, he was convicted by a summary court-martial of stealing a clock-radio from a fellow Soldier.  He was sentenced to a forfeiture of $366 pay for 6 months and confinement for 6 months.

6.  On 22 January 1982, the unexecuted portion of the sentence to confinement was suspended until 18 May 1982 and the applicant was sent to the retraining brigade at Fort Riley, Kansas.  However, on 9 February 1982, the applicant received NJP for disorderly conduct for fighting. 

7.  A social work counselor, an officer of the Medical Specialist Corps (MSC), interviewed the applicant and the applicant expressed a desire to complete the retraining program and stay in the Army.  The MSC officer thought the applicant's problems to be the product of immaturity and impulsiveness.  He found no reason to refer the applicant to a psychiatrist.

8.  During the next 4 weeks the applicant received two unsatisfactory weekly ratings and recycling was recommended.  A week later the applicant appeared to have given up and he requested a discharge.  Although a chaplain thought the applicant might turn his attitude around, his behavior deteriorated.  He failed barracks inspection on 10 March 1982, was late for guard mount on 11 March 1982, and he was cited for unmilitary behavior on 12 March 1982.

9.  A different MSC social work officer found the applicant immature, self-centered, and impulsive.  The applicant indicated that he had attempted            


re-training only because he thought it preferable to confinement.  He was not really interested in returning to duty.  The MSC officer found no indication that referral to psychiatry was necessary.  

10.  The same chaplain who had previously spoken to the applicant noted that the applicant had lost the will to complete retraining and concluded that the applicant had "given up."

11.  Training Progress Notes indicate separation was recommended; however, the applicant's separation action is absent from his military records.  

12.  The applicant's records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 6 May 1982, under other than honorable conditions, in accordance with the provisions of Army Regulation 635-200, paragraph 14-33b(1) based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 8 months, and 19 days of creditable service and he 
had 19 days of lost time due to being in confinement.  

13.  Army Regulation 635-200 (Personnel Separations) provides:

   a.  the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Currently, specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  At that time, frequent incidents of a discreditable nature was a designated category.  Currently, such behavior would probably be considered a pattern of misconduct.  Separation action will be taken when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.
   
   b.  in paragraph 3-7a, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
   
	


	c.  in paragraph 3-7b,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.

14.  Army Regulation 15-185 (ABCMR), paragraph 2-5 states, "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 he needs the discharge upgraded so that he may be eligible for mental health care from the VA.  He contends that he was sexually assaulted twice and that he did not report the incidents for fear of retribution and ridicule by his peers.  He believes these incidents impacted his ability to serve and contributed to his drinking and drugging.  He also contends that while in the military he sought help from mental health and thereafter he was treated differently.  

2.  The incidents the applicant described are tragic and inexcusable and the associated reactions are unfortunate.  However, the applicant was removed from Fort Hood and sent to the retraining brigade to be given a fresh start.  He was given access to chaplains and social workers and an opportunity to get help for his personal problems or for anything that may have been impacting his ability to serve.  However, the applicant claims he did not report the incidents, and the available evidence does not indicate the applicant sought help from mental health or that he was treated differently as a result of seeking help. 

3.  The discharge process must be presumed to have been in accordance with applicable law and regulations and the applicant's discharge appropriately characterizes his service in the absence of evidence to the contrary.  There is nothing in the available records or the applicant's assertions to overcome this presumption.

4.  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)                                         AR20100000304



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000304



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1