IN THE CASE OF:	  

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130003509 


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 that his general, under honorable conditions discharge be upgraded to honorable due to the trauma he experienced while on active duty. 

2.  The applicant states:

* He feels that what happened to him while on active duty changed his life forever and has caused him to have problems in all aspects of his life
* He is in the process of filing a service-connected claim for post-traumatic stress disorder (PTSD)

3.  The applicant further states in a self-authored statement that:

* He joined the Army at the age of 17 but he looked 12 or 13 years of age at the time which greatly affected how he was treated
* When he reported for duty in Germany, they would not accept him solely because of the way he looked
* He was assigned to the mortar platoon but he was then given the demeaning job of driving the mess hall truck; he carried out his duties to the best of his abilities
* He was physically assaulted by three drunken noncommissioned officers and he was then isolated until they could figure out what to do with him
* He was railroaded into a general discharge due to apathy which in no way reflects the true character of his service
* He has been suffering from PTSD because of what was done to him
4.  The applicant continues narrating negative experiences he endured while in the military and claims he was a victim of physical and sexual abuse, which led to a life of alcohol and drug abuse.

5.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 was born on 11 January 1954.  He enlisted in the Regular Army on 28 January 1971 and he was awarded military occupational specialty 11D (Armor Reconnaissance Specialist) upon completion of initial entry training.  

3.  He accepted nonjudicial punishment (NJP) on:

	a.  21 September 1972 for two specifications of failing to go at the time prescribed to his appointed place of duty;

	b.  28 September 1972 for failing to go at the time prescribed to his appointed place of duty and for being absent from his place of duty;

	c.  5 October 1972 for being absent from his place of duty and for two specifications of disobeying a lawful order from his superior commissioned officer;

	d.  12 October 1972 for wrongfully having in his possession hashish and for breaking restriction;

	e.  6 January 1973 for disobeying a lawful order, failing to go at the time prescribed to his appointed place of duty, and for being absent from his place of duty;
	f.  23 March 1973 for disobeying a lawful order from his first sergeant;

4.  His military file also contains a record of counseling that shows he was counseled on several occasions during the period 21 September 1972 to 
23 March 1973 for acts of misconduct that include not being at his place of duty on time, absent without leave for one day, poor attitude, breaking restriction, drug use, disobeying lawful orders, poor performance, and poor personal appearance. 

5.  On or around 21 April 1973, the applicant was informed by his unit commander that he was initiating action to effect his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13 for unsuitability.  

6.  On 27 April 1973, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

7.  On 28 April 1973, the separation authority approved the recommendation for separation and directed that the applicant be issued a General Discharge Certificate.  On 29 May 1973, he was discharged accordingly.

8.  There is no evidence in his available military records indicating he was a victim of physical and/or sexual abuse.  

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his general, under honorable conditions discharge.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation 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.  In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

11.  Army Regulation 635-200, 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general, under honorable conditions discharge should be upgraded to honorable because of the trauma he experienced while on active duty has been carefully considered.  

2.  Unfortunately, there is no evidence in his military records, and he provided none, substantiating his contention that he was a victim of physical and/or sexual abuse which contributed to his repeated acts of misconduct or that he attempted to report such abuse.

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  He consulted with legal counsel; he was advised of the basis for the separation action; he was provided the opportunity to present his case before a board of officers; and he had the opportunity to submit statements in his own behalf, which he elected not to do.  Therefore, all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  His record of indiscipline includes NJP on six occasions and an extensive record of counseling due to misconduct.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  Based on the foregoing, there is no basis to grant the 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)                                         AR20130003509



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130003509



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1