BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120010104 


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 her general discharge be changed to a medical discharge.

2.  The applicant states the military psychiatric evaluation she submits does not mention the rape.  She is now receiving 100-percent disability from the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD) due to military sexual trauma.

3.  The applicant provides a psychiatric evaluation, discharge summary, and DD Form 214 (Report of Separation from Active Duty).

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.  Her military records show she enlisted in the Regular Army on 16 October 1972.  She was awarded military occupational specialty 75B (Company/
Detachment Clerk).  The highest rank/grade she held was specialist four/E-4.

3.  She accepted nonjudicial punishment:

* on 13 February 1973 for being absent from her unit on or about 
9-10 February 1973
* on 23 March 1973 for being for being absent without leave (AWOL) on or about 14-20 March 1973
* on 1 June 1973 for being AWOL on or about 18 April-11 May 1973
* on 8 April 1974 for failure to go at the prescribed time to her appointed place of duty
* on 23 September 1974 for being AWOL on or about 13-16 September 1974

4.  On 25 April 1974, she was given a letter of reprimand for failure to be at her designated unit.

5.  She submits a copy of an unsigned psychiatric evaluation, dated 30 August 1974, completed in conjunction with her separation proceedings.  The Chief of Neuropsychiatry indicated the applicant alleged that she was fraudulently enlisted into the service approximately 2 years prior to that time and she had become disillusioned with the service and had made a number of attempts to get out of the Army.  She had been informed on more than one occasion that she did not have a psychiatric problem that would qualify her for discharge from the service.

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 20 September 1974, shows her behavior was found to be normal.  She was found to be fully alert and fully oriented with a level mood and clear thinking process; her thought content was normal and her memory was good.

7.  A DA Form 3822-R, dated 2 October 1974, shows her behavior was found to be normal.  She was found to be fully alert and fully oriented with a depressed mood and clear thinking process; her thought content was normal and her memory was good.  The evaluating psychologist, an Army Medical Corps officer, found no significant mental illness, found her to be mentally responsible, and considered her to have the mental capacity to understand and participate in separation proceedings.  Remarks state she had shown an ongoing and long standing difficulty in adjustment to the service.  Even though she did not display a character and behavior disorder, she did indeed show extreme apathy and lack of motivation to fully adjust to the stresses and requirements of service life.  He recommended her discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 13, as unsuitable.

8.  On 23 September 1974, her commander notified her that she was being recommended for discharge under provisions of Army Regulation 635-200, chapter 13, as unsuitable for continued service as a result of continued evidence of substandard duty performance and defective attitudes resulting in violations of the Uniform Code of Military Justice.  She was advised of her rights.

9.  On 7 October 1974, she acknowledged that she had been advised by her consulting counsel of the basis for the contemplated action to separate her for unsuitability under the provisions of Army Regulation 635-200, chapter 13, and its effects, of the rights available to her, and the effect of any action taken by her in waiving her rights.  She chose not to submit a statement on her own behalf.

10.  The separation authority approved her separation under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a general discharge.

11.  On 18 October 1974, the applicant was discharged under honorable conditions for unsuitability under the provisions of Army Regulation 635-200, chapter 13.  She completed 1 year and 11 months of creditable active service.

12.  Her military records are void of any mention of sexual trauma.

13.  She submits a discharge summary from a consulting psychiatrist, dated 27 September 1999, indicating she stated she had been sexually assaulted 27 years prior and she had a history of PTSD.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  Action would be taken to separate an individual for unsuitability when it was clearly established that it was unlikely that he or she would develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he or she met retention medical standards.  An individual separated because of unsuitability would be furnished an Honorable or General Discharge Certificate as warranted by his or her military record.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES).  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, the regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred to the PDES when they no longer met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

16.  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.  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.  Her records show she received nonjudicial punishment on five separate occasions for offenses including failure to go at the prescribed time to her appointed place of duty and being AWOL.  She also received a letter of reprimand for failure to be at her designated unit.

2.  A discharge summary that she submits indicates she stated she had been sexually assaulted 27 years prior.  It also indicates that she had a history of PTSD.  However, there is no evidence in her military records to support her contention that she incurred sexual trauma during her time of service.  Competent psychiatric personnel determined she had normal behavior with no psychiatric problem that would qualify her for discharge.  A psychiatric report indicated she repeatedly attempted to get out of the Army after she became disillusioned with the Army.  As such, her contention would not present a basis for changing her properly-assigned reason for discharge.

3.  She was discharged for unsuitability under the provisions of Army Regulation 635-200, chapter 13.

4.  The ABCMR begins its consideration with a presumption of regularity that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  As such, the applicant has not provided sufficiently convincing evidence or argument to form a basis to change her properly-assigned reason for separation of unsuitability to medical.

5.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20120010104



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ABCMR Record of Proceedings (cont)                                         AR20120010104



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