IN THE CASE OF:	  

		BOARD DATE:	   27 November 2012 

		DOCKET NUMBER:  AR20120008748 


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 discharge to an honorable discharge.

2.  The applicant states his discharge is inequitable because of missing information about an incident that occurred while he was on active duty.  He contends two Army sergeants gave him a drink that caused him to black out.  He was then sexually assaulted and raped.  He woke up smelling a horrible odor and having a pain he had never felt before.  He had been sexually penetrated.  It tore him apart.  He never told anyone.  He did not want to smear the Army's name.  He kept thinking and dreaming about what had happened.  The pain and hurt grew stronger inside him and he became angrier every day.  He was subsequently in a terrible car accident and hospitalized.

3.  The applicant provides a self-authored letter, dated 9 April 2012, and a Standard Form (SF) 600 (Chronological Record of Medical Care), dated
23 November 1977.

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 3 May 1977.  He completed his initial training and he was awarded military occupational specialty 13B (Cannon Crewman).

3.  On 10 August 1977, he was assigned for duty as an ammunition handler with Battery A, 2nd Battalion, 31st Field Artillery, located at Fort Campbell, KY.

4.  On 1 March 1978, the applicant was advanced to the rank/grade of private first class (PFC)/E-3.

5.  On 27 September 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order from his first sergeant on 12 September 1978.

6.  On 27 September 1978, the commander notified the applicant of his intent to separate him because of his apathetic attitude towards military life and disrespect towards his leaders.  His military effectiveness was zero.  The applicant acknowledged this notification and voluntarily consented to be discharged.  He elected to submit a statement in his own behalf; however, no statement is available for review.  He indicated he understood that if he was issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life.  He also acknowledged that he was provided the opportunity to consult with an officer of the Judge Advocate General's Corps.

7.  On 27 September 1978, the applicant's commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program) for the convenience of the government.  In support of the recommendation, the commander cited the first sergeant's counseling of the applicant for his attitude and missing formation.

8.  On 11 October 1978, the separation authority approved the applicant's recommendation for separation under the provisions of Army Regulation
635-200, paragraph 5-31, and directed the applicant be furnished a General Discharge Certificate.
9.  Accordingly, on 23 October 1978, the applicant was discharged with a general discharge.  He completed 1 year, 5 months, and 21 days of total active service.

10.  On 20 August 1986, the Army Discharge Review Board (ADRB) determined that his separation was both proper and equitable.  As a result, the ADRB denied the applicant's request for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 5-31 (Expeditious Discharge Program) provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  This program provided that members who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated.  A general discharge was normally considered appropriate.

		(1)  Poor attitude

		(2)  Lack of motivation

		(3)  Lack of self-discipline

		(4)  Inability to adapt socially or emotionally

		(5)  Failing to demonstrate promotion potential

	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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to an honorable discharge because he was sexually assaulted while on active duty.

2.  The record shows the applicant had been counseled for his attitude and failure to report to formation.  He also accepted NJP for disobeying a lawful order.
3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant's contention that his misconduct was due to being sexually assaulted is not supported by any evidence of record.  Unfortunately, other than his personal statement 30 years later, there is no documented evidence of his being assaulted, or that such assault was the cause of his accident, or his subsequent separation.

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120008748



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ABCMR Record of Proceedings (cont)                                         AR20120008748



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