IN THE CASE OF:

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120007715 


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 under other than honorable conditions (UOTHC) to honorable.

2.  He states that his UOTHC discharge should be upgraded because he was sexually abused by a noncommissioned officer (NCO).  He tried to get reassigned to another unit but was unable to do so and started having other problems.  Today he knows that he should have reported the incident and that probably would have saved his career in the military.  He was a young Solider and did not know of all the resources available.  He was embarrassed to discuss the issue until recently.  The incident has affected his whole life.

3.  The applicant provides a:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 5 January 2012
* letter to the Veterans Service Officer, Ozark, Alabama

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 on 30 June 1970.  He completed training and was awarded military occupational specialty (MOS) 94B (Cook).  He subsequently reclassified to MOS 76A (Supply Clerk).  He was assigned to Fort Hood, Texas, and later to Dugway Proving Grounds, Dugway Utah.

3.  His records show he accepted nonjudicial (NJP) punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 6 October 1970, for being absent from his place of duty
* 4 May 1971, for willfully disobeying a lawful order and two incidents of failing to go at the time prescribed to his place of duty 
* 26 May 1971, for signing a false document, failing to obey a lawful order, and being disrespectful in language to an NCO
* 28 September 1971, for two incidents of failing to go at the time prescribed to his place of duty
* 31 March 1972, for failing to obey a lawful regulation and failing to go at the time prescribed to his place of duty

4.  The applicant's discharge processing documentation is not available.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was administratively discharged on 
16 June 1972 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was issued a UOTHC discharge.  He had completed 1 year, 11 months, and 17 days of total active service.

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

6.  He provides a letter addressed to Mr. John L____, Veterans Service Officer, Ozark, Alabama, dated 7 January 2012.  In the letter, his daughter describes how her father's life was affected due to his sexual assault when he was a young Army private.  She indicates that he was always an "outcast" socially awkward and moody.  He has a very short temper and never attended his children's social events.  He told her that the Army had sent him to a psychiatrist, but something happened and he never saw the doctor.  Since the "Penn State scandal" happened, her father told her of the sexual assault incident.  She wrote the letter seeking professional counseling for him from the Department of Veterans Affairs.

7.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been 
preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

	b.  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.

	c.  Paragraph 3-7b 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.

8.  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.  Paragraph 2-9 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 specific facts and circumstances surrounding his discharge are not available.  His DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

2.  There is no available evidence to substantiate the applicant's claim of sexual abuse or that he sought any assistance with the matter.  

3.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

4.  The applicant has not shown error, injustice, or inequity for the relief he requests.  Therefore, the applicant not entitled to an honorable 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 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)                                         AR20110020828



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ABCMR Record of Proceedings (cont)                                         AR20120007715



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