IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100014701 


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, correction of his record to show he was discharged for disability.

2.  The applicant states, in effect, he was in a mental hospital in an absent without leave (AWOL) status when he was returned to military control and that his discharge was not what he believes it should have been.

3.  The applicant provides a self-authored statement, a Social Security Administration letter awarding him disability benefits, a record of admission and discharge from Douglas County Hospital (Nebraska), copies of records from his Official Military Personnel File (OMPF), copies of court decisions pertaining to discharges, articles pertaining to sexual assault in the military, information on adjustment disorders, and a copy of a presentation on male sexual assault victims from the 2006 Department of Defense Sexual Assault Response Coordinator Conference.

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 Regular Army at age 17 on 7 August 1972.  His mother provided the required parental consent for his enlistment.

3.  His service medical records show that on 21 August 1972 he reported being ill for 2 days with malaise, chilliness and fever, a sore throat, a cough, and constipation.  On 22 August 1972, he was discharged to duty with a 2-day profile.

4.  A DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost) the applicant was AWOL from 24 August to 6 December 1972 and from 26 December 1972 to 4 January 1973.

5.  An interview form completed at the U.S. Army Personnel Control Facility (USA PCF), Fort Riley, KS, on 8 December 1972 shows he reported the following reasons for going AWOL:

* family problems
* financial problems
* hated the Army
* medical, specifically neuropsychiatric

6.  A Standard Form 88 (Report of Medical Examination) shows, on or about 8 December 1972, a physician verified the applicant was medically qualified for separation.

7.  The record includes an undated DA Form 3822-R (Report of Mental Status Evaluation) showing the applicant underwent a mental status evaluation because he was being considered for separation for desertion.  The form shows he was found to have normal behavior, to be fully alert, to have a level mood and clear thinking process with normal thought content and good memory.  He was found to have no significant mental illness, to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, to have the mental capacity to understand and participate in board proceedings, and to meet the retention standards prescribed by Army regulations.


8.  A DD Form 458 (Charge Sheet), dated 18 December 1972, shows the applicant was charged with one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit from on or about 24 August to on or about 7 December 1972.

9.  On 18 December 1972, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  Prior to submitting his request, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, the procedures and rights that were available to him, and of the substantial prejudice he might encounter in civilian life by reason of an undesirable discharge. 

10.  He also acknowledged he understood that as a result of an undesirable discharge he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  His voluntary request for discharge includes the handwritten statement "I understand the above and no one has force [sic] me to request a discharge."

12.  In support of his request for discharge, he submitted the following statement:

I would like a general discharge because I'm the last one in my family to support.  My mom can only work 4 hours a day and I have 2 little brothers at home so I have to be there to help out and I do not wish to apply for a hardship because I want out as soon as possible.

13.  On 18 December 1972, he voluntarily requested to be placed on excess leave.  In his request he indicated he understood his leave would terminate on the date indicated on his leave orders.  Unit Orders Number 230, issued by Holding Company, USA PCF, on 19 December 1972, placed the applicant on excess leave effective the date of the orders and ordered him to return to the USA PCF on 26 December 1972.

14.  On 27 December 1972, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 4 January 1973, he was discharged accordingly and his service 


was characterized as under conditions other than honorable.  He completed 1 month and 8 days of total active service with 115 days of time lost.

15.  On 4 January 1973, the applicant's commander acknowledged receipt of a constructive notice of discharge from the Commander, USA PCF.  The notice shows the applicant was in an AWOL status on the date of his discharge.

16.  In his self-authored statement, the applicant states he was gagged and raped on or about 21 August 1972.  After the incident he sought and received medical treatment for his neck and throat.  He states:

I was [then] returned to duty and while on the [physical training] field I was being asked if I was on my period and things like this because I was bleeding from the rectum and I guess it was showing through my pants.  I [then] asked to be excused and while on my way to sick bay I took the whole bottle of pills the doctor gave me, I just wanted to die, I had been awake for almost two days and the extreme heat there and nothing to drink or eat.  I was falling down and taken to the sick bay where they did something and [then] yelled at by the doctor and told to get back to the barracks.  Well this is the place [the rape] happened and I guess I wanted no part of that happening again, so I just started walking and walking for about 3 days.

17.  He states he eventually returned home, he attempted suicide again, he was checked into a mental ward, and, about a week later, he was taken to Fort Riley.  He continues stating, in effect, he did not receive appropriate medical care prior to his discharge and records from his stay in the mental ward which were given to the military police are not in his record.  He signed the documents requesting discharge "under distress" because he was not prepared to remain in confinement and he was not mentally competent to conceive of the implications of requesting discharge.  He indicates these issues were exacerbated by his age.

18.  He also states, in effect, he was not formally discharged because he did not receive his discharge papers.  

19.  The record is void of documentation showing the applicant was sexually assaulted or that he attempted suicide.  

20.  A record of admission and discharge from the Douglas County Hospital provided by the applicant shows he was hospitalized from 29 November to 7 December 1972 and diagnosed with "adjustment reaction of adolescence."


21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  

22.  Army Regulation 635-200 authorized constructive notice of discharge when actual delivery of the discharge certificate could not be accomplished owing to the absence of the individual to be discharged.  Receipt by the individual's organization at his proper station of the order directing his discharge was deemed sufficient notice.

23.  Army Regulation 635-200 also provided that when an individual being processed for discharge under the provisions of chapter 10 absented himself without leave, his discharge could be executed notwithstanding such absence, provided the recommendation for discharge was approved by the commander exercising general or special court-martial jurisdiction, as appropriate, and provided the absence occurred subsequent to the date the case was forwarded through channels to the commander exercising general or special court-martial jurisdiction.

24.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.  The regulation is not applicable to members charged with offenses for which dismissal or a punitive discharge may be adjudged by a court-martial.

25.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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 evidence of record does not support the applicant's request for correction of his record to show he was discharged for disability.
2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation, including a physical examination and mental evaluation, were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Because he was charged with an offense for which a punitive discharge could be adjudged by a court-martial, he was not eligible for physical disability evaluation for the purpose of separation.  Regardless of that fact, the evidence of record shows the physical examination and mental evaluation conducted in conjunction with his separation processing found his physically and mentally fit.   

4.  In the absence of documentary evidence showing errors in the processing of his discharge or that he was not competent to participate in the discharge proceedings, administrative regularity must be presumed.

5.  In view of the foregoing, there is no basis for granting the 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)                                         AR20100014701



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014701



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1