IN THE CASE OF:
BOARD DATE: 27 August 2013
DOCKET NUMBER: AR20130001839
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 his general discharge be upgraded to honorable.
2. The applicant states, in effect, he suffers from post-traumatic stress disorder (PTSD) due to being sexually abused by another man. He states he did not report the incident because it was embarrassing and it has led him to a self-destructive life style. When he is reminded of the incident he experiences homicidal and/or suicidal thoughts. His behavior and mental health has declined. He contends that if this had not occurred he would not have a disability and he would have received an honorable discharge.
3. The applicant provides no additional evidence in support of his application.
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. On 7 April 1988, the applicant enlisted in the Regular Army.
3. The applicant accepted nonjudicial punishment (NJP) as indicated below:
* 1 June 1988: breaking curfew and being drunk while on duty
* 5 July 1988: being drunk while on duty
* 22 August 1988: breaking restriction and being absent without leave (AWOL) from on or about 18 to 20 July 1988
4. On 26 September 1988, at a mental status evaluation, the applicant's behavior was found to be normal. He was fully alert and oriented and displayed an unremarkable mood. His thinking was clear, his thought content normal and his memory good. There was no significant mental illness. The applicant was mentally responsible.
5. On 3 October 1988, the applicants commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for a pattern of misconduct. The commander cited the applicant's three NJPs as a basis for his recommendation.
6. On 4 October 1988, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board. He elected not to make a statement in his own behalf.
7. The appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.
8. Accordingly, on 29 November 1988, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, due to a pattern of misconduct with a general discharge. He completed 5 months and 19 days of creditable active service and he had 2 days of lost time due to being AWOL.
9. On 10 January 1991, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge. The ADRB determined that his discharge was proper and equitable and denied his request.
10. The applicant's service medical records were not available for review.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include a pattern of misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his general discharge should be upgraded to honorable because he was sexually abused while on active duty.
2. The record shows the applicant accepted three NJPs during his 5 1/2 months of active service. This clearly shows a pattern of misconduct.
3. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized 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 contends that the proximate cause of his misconduct was his PTSD that resulted from being sexually abused while on active duty. Unfortunately, as he acknowledges, there is no evidence of any such occurrence. Regrettably, therefore, he has not provided evidence to sufficiently support his argument.
6. In view of the above, the applicant's request should be denied.
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) AR20130001839
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