IN THE CASE OF:	

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130003581 


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 undesirable discharge to honorable and restoration of his lost time.

2.  The applicant states he was intimidated by a gay officer and left the Army because of it.

3.  The applicant provides a self-authored statement and three letters of support.

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 25 October 1972, the applicant enlisted in the Regular Army and served as a chaplain's assistant.

3.  A DD Form 458 (Charge Sheet) shows, on 27 November 1974, he was charged with being absent without leave (AWOL) from his unit at Fort Sill, OK from on or about 9 August to 19 November 1974.

4.  On 4 December 1974, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service.  The applicant provided a statement with his request in which he indicated that he was AWOL because he needed help that the Army could not give him.  He further stated that upon seeking counsel from the chaplain he was "approached homosexually" and this experience caused him to want nothing more to do with the military.  Although he felt bad about his actions, going AWOL was the fastest way out.

5.  His immediate commander recommended approval of his request with the issuance of an undesirable discharge.  He cited that the applicant had been a constant leadership and disciplinary problem.  When interviewed, the applicant informed his commander that he would do whatever was necessary to get out of the Army.  Therefore, the commander was convinced the applicant would go AWOL again.  He felt that there was no reasonable likelihood that the applicant could be rehabilitated.

6.  The applicant's intermediate commander recommended disapproval and stated that it was apparent the applicant's intentional breach of good order was for the sole purpose of obtaining a discharge in order to carry out other vocational plans.  Further, the applicant was convinced through conversations with people outside of the Army community that an undesirable discharge action could be set aside with little effort.  He noted that the applicant was a good man who had taken a wrong turn for reasons unknown.

7.  On 31 December 1974, his request for discharge was denied.

8.  A second DD Form 458 shows that, on 18 March 1975 the applicant was charged a second time with being AWOL from his unit from on or about 
19 December 1974 to 18 March 1975.

9.  On an unknown date, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an undesirable discharge, and of the procedures and rights available to him.



10.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10 a second time.  He acknowledged:

	a.  by submitting the request, he was acknowledging he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge;

	b.  under no circumstances did he desire further rehabilitation as he had no desire to perform further military service;

	c.  he understood that as a result of his request he could be discharged under other than honorable conditions with an Undesirable Discharge Certificate;

	d.  as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under Federal and State laws; and
 
	e.  he understood he could expect to encounter substantial prejudice in civilian life due to the issuance of an undesirable discharge.

11.  In conjunction with his discharge he provided a statement wherein he indicated that the Army gives power to people that don't deserve it and who abuse it.  The Army was wrong and he would not participate in it.  This was the reason he went AWOL and the reason he wanted a discharge.

12.  On 15 April 1975, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and directed he receive an Undesirable Discharge Certificate.  On 18 April 1975, he was discharged as directed.  His DD Form 214 shows he was issued an Undesirable Discharge Certificate.  He completed 1 year, 11 months, and 13 days of active service with 193 days of lost time.

13.  The applicant provides a detailed account of the events that led to his actions.  He stated that he sought counsel over God and his faith from Chaplain Cxxxx and the chaplain later attempted to have sex with him.  This event, along with the chaplain's persistent threats and sexual advances, caused him to go AWOL.  He later returned to face the problem and received his punishment.  However, the chaplain approached him while he was cleaning a house alone and again made threats and sexual advances toward him.  The nightmare seemed to have no end so he went AWOL again.  Upon arriving at home he contacted his state representative who managed to expedite his discharge.  The Army failed him and provided him with no clear cut course of action other than to escape it the only way he could figure out at the time.

14.  He also provided three letters of support from a District Court Special Judge, an Assistant District Attorney, and an attorney.  All letters speak to the applicant's good character, integrity, and trustworthiness.  His supporters believe that the applicant's military experiences and sexual abuse made it difficult for him to speak about it, which is consistent with victims of similar abuse.  Further, they believe the applicant should be afforded a proper investigation and have this huge injustice rectified.

15.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

16.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  chapter 10, of the version in effect at the time, provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  chapter 3, paragraph 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.

	c.  chapter 3, paragraph 7b, provides that an under honorable conditions is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  

18.  Title 10, U.S. Code, Section 972, states an enlisted member of an armed force who deserts, is absent from his organization, station, or duty for more than one day without proper authority, or is confined by military or civilian authorities incurs lost time.  

19.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The version in effect at the time stated, in pertinent part, that the total number of days lost with inclusive dates would be entered in item 21 (Time Lost).

20.  Army Regulation 15-185 provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  In pertinent part, it states the Board will decide cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows that the applicant voluntarily requested discharge on two separate occasions and clearly indicated that he did not want to continue his service.  The record further shows that he was charged on two separate occasions with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.  

3.  His claim of sexual abuse is not in question; however, the applicant's actions and statements show that he intentionally went AWOL in order to attain a separation rather than seek more appropriate administrative remedies such as assistance from his chain of command, counseling from someone he trusted, or reassignment.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is insufficient evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to an upgrade of his discharge.  

5.  The evidence of record shows he had 193 days of lost time due to being AWOL and this information is properly recorded on his DD Form 214.  There is an insufficient basis to remove this entry from his DD Form 214.

6.  Unfortunately, it appears the applicant did not raise the issue of being propositioned by the chaplain until after he had returned from AWOL.  This Board is not an investigative body.  Even if the applicant requested an investigation by any appropriate Army agency today, almost 40 years after he separated, it is doubtful that such an investigation would be able to verify the facts.

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)                                         AR20130003581



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ABCMR Record of Proceedings (cont)                                         AR20130003581



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