IN THE CASE OF:	  

		BOARD DATE:	 25 July 2013

		DOCKET NUMBER:  AR20130000570


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 discharge.

2.  The applicant states:

* he was caught with 3 marijuana cigarettes and as punishment, he was given nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)) and placed in confinement
* he could have been rehabilitated after his marijuana use was discovered – instead he was placed in confinement at Fort Leonard Wood, MO, where he was physically assaulted and raped
* following his rape, he went absent without leave (AWOL) for 29 days before he turned himself in at the Presidio of San Francisco, CA
* he was returned to Fort Leonard Wood where he was held in the Pulaski County Jail for 45 days
* while in the Pulaski County Jail, he faced repeated instances of sexual assault and rape
* at the time he was discharged, he was so screwed up mentally that all he wanted was to get out of the Army
* his life has spiraled out of control – he has been in and out of jail and prison throughout his adult life, addicted to drugs and alcohol
* he needs Department of Veterans Affairs (VA) benefits so he can receive treatment for post-traumatic stress disorder (PTSD) and drug rehabilitation 

3.  The applicant provides a 2-page self-authored handwritten statement in support of his request.
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 U.S. Army Reserve on 8 November 1984.

3.  On 29 November 1984, he entered active duty at Fort Leonard Wood for the purpose of attending basic training.

4.  On or about 7 January 1985, he was found to be in possession of marijuana.

5.  On or about 10 January 1985, he was confined at Fort Leonard Wood as part of the NJP he received for wrongful possession of marijuana.  On or about 
28 January 1985, he was released from confinement and returned to his basic training unit.

6.  His record contains a DA Form 4856-R (General Counseling Form) that documents counseling he received following his release from confinement.  The applicant did not make any comments on this form, and the form contains no written indication he was sexually assaulted while in confinement.

7.  On or about 1 February 1985, he was reported by his unit as AWOL.  He remained AWOL until he was returned to military control on or about 27 February 1985.

8.  On 12 March 1985, pursuant to a summary court-martial conducted at Fort Leonard Wood, he was confined in the Pulaski County Jail, where he remained until his release and return to military control on 2 April 1985.

9.  On 2 and 3 April 1985, he was formally counseled following his release from the Pulaski County Jail.  These counseling sessions were documented by separate DA Form 4856-R, that show in both instances, the applicant did not make any comments and the forms contained no written indication he was sexually assaulted while in confinement.

* during the counseling that occurred on 2 April 1985, the applicant stated he refused to train
* during the counseling that occurred on 3 April 1985, when asked by the counselor whether, given the choice, he would continue training or return to jail, he stated he would rather return to jail than continue training

10.  On 8 April 1985, his immediate commander informed him of his intent to process him for separation under the provisions of Army Regulation 635-200, (Personnel Separations – Enlisted Personnel), chapter 11 (Entry Level Status Performance and Conduct).  His commander cited his inability to meet the minimum standards prescribed for successful completion of training because of his refusal to train.  His commander stated he was recommending the applicant receive an uncharacterized separation.  The applicant acknowledged receipt of the separation notification, waived his rights and assistance by appointed counsel, and elected not to submit statements in his own behalf.

11.  On 8 April 1985, his commander recommended his discharge from the Army under the provisions of Army Regulation 635-200, chapter 11.

12.  On 10 April 1985, the separation authority approved his separation action for performance and conduct while in an ELS.  The separation authority directed the applicant be separated under the provisions of Army Regulation 635-200, chapter 11, and that he receive an uncharacterized separation.

13.  On 16 April 1985, the applicant was discharged accordingly.  At the time of his discharge he had completed 3 months of creditable active service.  His DD Form 214 shows in:

* Item 23 (Type of Separation) – Discharge
* Item 24 (Character of Service) – Uncharacterized
* Item 25 (Separation Authority) – Army Regulation 635-200,
Paragraph 11-3a
* Item 28 (Narrative Reason for Separation) – Entry Level Status Performance and Conduct

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, 

while in an entry-level status.  This provision applied to individuals who had demonstrated they were not qualified for retention because they:

* could not adapt socially or emotionally to military life
* lacked the aptitude, ability, motivation, or self discipline for military service
* demonstrated characteristics not compatible with satisfactory continued service

The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action).  An uncharacterized description of service was required for separation under this chapter.

15.  Army Regulation 635-200 further states in:

	a.  Paragraph 3-7a 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.

	b.  Paragraph 3-7b 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered; however, there is an insufficient evidentiary basis to support his request.

2.  He contends he was repeatedly sexually assaulted and raped during his periods of confinement; however, the evidence of record does not support his contentions.  The evidence shows he was counseled upon his release from confinement, and in both instances, he made no mention of any mistreatment he was subjected to while in confinement.

3.  The evidence of record shows he did not or could not adjust to military life, as evidenced by his lack of motivation and lack of self-discipline.  Accordingly, his chain of command initiated separation action against him.

4.  His separation action was initiated prior to the completion of 180 days of continuous active duty service; therefore, his service is properly described as uncharacterized.  The record further shows his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  A Soldier is in an entry level status, or probationary period, for the first 180 days of continuous active service.  The issuance of a general discharge to members in an entry level status is not authorized and an honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  No such unusual circumstances are documented in his record; therefore, there is no basis to support any change to the characterization of his service.

6.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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 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)                                         AR20100014926



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ABCMR Record of Proceedings (cont)                                         AR20130000570



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