IN THE CASE OF:	  

		BOARD DATE:	    25 October 2012

		DOCKET NUMBER:  AR20120006603 


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:

* an upgrade of his general discharge to an honorable discharge
* restoration of his rank/grade to private first class (PFC)/E-3
* expunge his lost time
* a hearing before the Board

2.  The applicant states, in effect, when he was 17 years old and stationed at Fort Irwin, CA, he was attacked and raped by three men in his barracks room.  He blacked out and when he regained consciousness he was on a plane heading to a hospital in San Francisco, CA.  After he was released from the hospital he was transferred to another unit and things started going downhill.  He disliked social situations and his conduct began to deteriorate.  His behavior and feelings were unlike him.  Essentially, he was suffering from post-traumatic stress disorder (PTSD) and, therefore, he was not responsible for his behavior or actions.  He was court-martialed for disobeying an order and put in the stockade; however, he does not remember doing anything wrong.  Eventually, he was discharged for a character and behavior disorder and unsuitability due to an inadequate personality.  

3.  The applicant provides a self-authored statement and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).



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 was born on 13 May 1951 and enlisted in the Regular Army at age 17 on 13 May 1968.  He held military occupational specialty 76A (Supply Clerk).

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Company C, 3rd Battalion, 1st Basic Combat Training Brigade, U.S. Army Training Command, Fort Gordon, GA, from 21 May 1968 to 27 September 1968. 

4.  On 5 June 1968, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without authority from his unit on 4 June 1968.

5.  His DA Form 20 shows he accrued a total of 34 days of lost time due to being absent without leave (AWOL) or having been in confinement on the following dates:

* AWOL from 16 to 18 June 1968 
* AWOL from 11 June to 13 July 1968 
* Confinement from 14 July to 11 August 1968

6.  On 2 July 1968, he was convicted by a special court-martial of one specification of disobeying a lawful order and one specification of being AWOL.  His sentence included a forfeiture of $60.00 pay for 6 months and confinement for 6 months.  

7.  Special Court-Martial Order Number 174, dated 12 August 1968, remitted the unexecuted portion of his sentence to confinement for 6 months, effective 
12 August 1968.  

8.  His DA Form 20 shows he was assigned to Fort Irwin, CA from 2 December 1968 to 23 January 1969 and to Fort Lewis, WA, from 26 January 1968 to 
5 August 1969.  

9.  There are no medical records for review with this case or any indication in the available record to show the applicant was ever hospitalized or treated for a physical or sexual assault while serving on active duty.  

10.  On 28 April 1969, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order from his superior noncommissioned officer (NCO) on 28 April 1969.

11.  His record contains a certificate, issued by a psychiatrist at the Mental Hygiene Consultation Service at Madigan General Hospital, Fort Lewis, WA, on 22 May 1969.  This certificate was issued as a report of a neuropsychiatric examination and prepared by the examining psychiatrist/medical officer.

	a.  The medical officer diagnosed him with an inadequate personality and issued him a psychiatric profile.  

	b.  The medical officer stated the applicant had a history of marked social inability during his military service.  His condition was part of a character and behavior disorder due to deficiencies in emotional and personal development of such degree as to seriously impair his function in the military service.  He used poor judgment, was not committed to productive goals, and was unmotivated.  It was not believed his condition was amenable to any form of punishment, retraining, or other forms of rehabilitation.

	c.  There was no evidence of a mental disease, defect or derangement sufficient to warrant a medical disposition under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).

	d.  The subject was and is mentally responsible both to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board and other legal proceedings.  He was psychiatrically cleared for separation from the service under the provisions of the appropriate administrative regulations.

12.  His record contains a certificate, issued by a chaplain at Fort Lewis, WA, on 26 May 1969.  This certificate was issued as a report of an interview with the applicant prepared by the chaplain who conducted the interview.  The chaplain stated his personality was not adequate enough to cause him to function effectively in the Army.  It was recommended he be separated from the service under the appropriate administrative regulation.

13.  On 11 July 1969, he was convicted by a special court-martial of one specification of disobeying a commissioned officer.  His sentence included a reduction in rank/grade to private/E-1, a forfeiture of $60.00 pay for 6 months, and confinement for 6 months.  

14.  His record contains a certificate, issued and prepared by the defense counsel who represented the applicant at his 11 July 1969 court-martial, dated 22 July 1969, wherein counsel stated in preparation for his defense over
26 hours were spent speaking to the applicant in the stockade.  Counsel observed him to be immature, confused, and mentally upset.  Counsel stated he seemed to know right from wrong, but cared not about whether he did right or wrong, he was afraid to face the problems he encountered, and had no sense of responsibility.  Counsel opined he would never be of value to the Army.

15.  On 17 July 1969, the applicant's immediate commander notified him of his intent to discharge him under the provisions of Army Regulation 635-212 (Unfitness and Unsuitability).  The basis for the proposed discharge was unsuitability due to character and behavior disorders caused by an inability to expend effort constructively and a defective attitude.  His commander advised him of his right to present his case before a board of officers, submit statements in his own behalf, and receive representation by counsel before a board of officers.  

16.  On 18 July 1969, he consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general under honorable conditions discharge was issued to him.

17.  On 28 July 1969, the separation authority approved his discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed the issuance of a General Discharge Certificate.  

18.  Special Court-Martial Order Number 602, dated 29 August 1969, remitted the unexecuted portion of his sentence to confinement for 6 months, effective 30 August 1969.  




19.  His DD Form 214 shows he was discharged, on 5 August 1969, under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorders, assigned the separation program number (SPN) code "264," and a reentry (RE) code of "RE-3B."  He completed a total of 11 months and 
22 days of creditable active service with 92 days of lost time.  

20.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB determined he was properly and equitably discharged and denied his request on 18 March 1980.

21.  He provided a self-authored statement which has been outlined in the applicant's request, statement, and evidence portion of the record of proceedings.

22.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general discharge was considered appropriate.

23.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

24.  Army Regulation 630-10 (AWOL and Desertion) provides guidance for determining AWOL or desertion status.  It defines procedures for administration of persons in such status.  It gives instructions:  for starting apprehension efforts. It also describes administrative actions for Soldiers returning to military control.  It states Soldiers will be reported AWOL when they absent themselves without authority and remain absent for more than 24 hours.  Absentees and deserters are considered returned to military control when they surrender to military authorities, are delivered to military authorities, are arrested by or for military authorities, and/or are available for transfer to military custody after being held by civil authorities.

25.  Army Regulation 15-185 (ABCMR), paragraph 2-11, states that applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance before the Board and his contention that his discharge should be upgraded to honorable, his rank restored to PFC, and his lost time expunged from his record because he had PTSD caused by a sexual assault and was, therefore, not responsible for his behavior or actions has been carefully considered.

2.  Unfortunately, his record is void of any medical records, and the applicant has not provided any official documents, recording an incident of sexual assault while he was assigned to Fort Ord, CA; however, his records do contain two instances of AWOL, NJP, and conviction by a special court-martial, before his assignment to Fort Ord, CA..

3.  The applicant’s military record failed to show any documentation that the lost time on his DD Form 214 is erroneous and should be removed.  His record shows he was convicted by two special courts-martial, he received one Article 15, and he was AWOL on two separate occasions.  His lost time is the result of these two periods of AWOL and the confinement he received as part of his two courts-martial sentences.  Additionally, his reduction in rank was a result of a court-martial sentence.  He is, therefore, not entitled to restoration of rank or expungment of his lost time.

4.  Based on his record of misconduct his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.  

5.  In view of the foregoing, there is no basis for granting relief in this case.

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)                                         AR20120006603



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ABCMR Record of Proceedings (cont)                                         AR20120006603



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