IN THE CASE OF:	  

		BOARD DATE:  2 January 2014

		DOCKET NUMBER:  AR20130004871 


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 under other than honorable conditions discharge to an honorable discharge.

2.  He states he was administratively discharged under other than honorable conditions in March 1982 as a result of being absent without leave (AWOL) from September 1981 to March 1982.  

	a.  Upon voluntarily returning to duty, he informed a chaplain at Fort Bragg, NC, that while attending the course for military occupational specialty (MOS) 94B (Food Service Specialist) at Fort Jackson, SC, he was sexually assaulted by a senior male instructor, a noncommissioned officer (NCO).  The NCO lured him to his quarters by telling him he needed help moving furniture.  The NCO gave him some beer, which he suspects contained a drug because he passed out.  That is when the NCO sexually assaulted him.  

	b.  The NCO told him that if he told anyone or did not allow him to continue to sexually assault him, the NCO would hurt his family.  He was repeatedly harassed by the same NCO.  Being young and naïve, he believed the NCO's threats.  He tried to inform his chain of command, but they refused to believe the instructor would do what he described to them.  Seeing no other option, he went AWOL.

	c.  When he returned to Fort Bragg, he again tried to tell the chain of command about the assault and constant harassment.  The NCO had even contacted his family while he (the applicant) was on leave.  The Army refused to believe him and told him the only option was to return to his command and the NCO who had assaulted him.  He felt trapped and felt that the Army knew he was telling the truth but was protecting the NCO.  Returning to the rapist who was being protected was not a choice anyone should have to make.  He agreed to be discharged rather than face sexual assault again.  He feels the Army had no concern for the victim of this crime and turned their backs on a Soldier.  

	d.  He has come to terms with this issue that has haunted him most of his adult life.  He served honorably until the incident and would have continued to do so if it had never happened.  He is also seeking assistance in bringing the offender to justice through law enforcement channels.  

3.  He provides:

* self-authored statements
* letter from the  U.S. Army Crime Records Center, U.S. Army Criminal Investigation Command (CID)
* CID Reports of Investigation and allied documents
* statement from his brother
* DD Form 214 (Certificate of Release or Discharge 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.  On 2 April 1981, the applicant enlisted in the Regular Army.  He completed basic combat training and, on 29 July 1981, he was assigned to a unit at Fort Jackson, SC, for training in MOS 94B.  

3.  His record shows he was reported AWOL from 8 September 1981 through 20 January 1982.  A DA Form 4187 (Personnel Action), dated 1 February 1982, shows he surrendered to military authorities at Fort Jackson, SC, on 21 January 1982, and he was subsequently assigned to the U.S. Army Personnel Control Facility, Fort Bragg, NC.

4.  A DD Form 458 (Charge Sheet), dated 25 January 1982, shows he was charged with being AWOL from 8 September 1981 to 21 January 1982.  

5.  On 27 January 1982, he consulted with 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), the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.

6.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He stated he understood he could request discharge for the good of the service because a charge had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He acknowledged:

* 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
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood he could be discharged under other than honorable conditions as a result of his request
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge 
* as the result of such a discharge, he would be deprived of many or all benefits administered by the Veteran's Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	c.  He did not indicate whether or not he intended to submit statements in his own behalf.

7.  On 27 January 1982, the applicant's commander recommended he be discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10.  The commander stated he had personally interviewed the applicant and confirmed that the applicant was aware of the consequences of the request for discharge.  The commander stated the applicant had stated that his period of AWOL was caused by his inability to adapt to military life.  The applicant stated he felt he was not mature enough to be in the Army and was emphatic in his statement that he would go AWOL again if forced to remain in military service.

8.  On 26 February 1982, the separation authority approved the applicant's request for separation and directed he receive an under other than honorable conditions discharge.  On 16 March 1982, he was discharged accordingly.

9.  His record is void of documentation indicating he reported being the victim of a sexual assault.

10.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  He provides:

	a.  Self-authored statements that he provided to the Department of Veterans Affairs in 2006 and 2007 in which he described:

* his reasons for joining the military
* being raped by an instructor
* his decision to go AWOL
* his decision to leave the Army
* his embarrassment and fear of telling the truth
* being injured in an accident at Fort Bragg

	b.  CID Reports of Investigation and allied documents showing he reported an incident of sexual assault to CID on 25 October 2007.  Efforts to identify and locate the alleged perpetrator failed.  The applicant claimed he had told several people about the incident, but none of them recalled having been told.  A priest stated he had spoken with the applicant, but was never told of an incident while the applicant was in the military.  The priest was aware of an incident that occurred when the applicant was a child.  CID noted the applicant did not report the matter until 26 years had passed and determined the complaint could not be substantiated or refuted.  

	c.  A statement, dated 1 March 2013, from his brother, an Army chief warrant officer three, who stated he was aware in the fall of 1981 that the applicant had gone AWOL.  He was serving in the U.S. Marine Corps at the time and his commander granted him leave to find the applicant and return him to Fort Jackson.  He learned the applicant was in Florida staying with friends.  When contacted by phone, the applicant sounded distraught.  He would not explain why he left Fort Jackson.  When asked again, the applicant said, "If I go back there, I will have to kill someone."  His brother states he knew something awful had happened.  He recounts the circumstances of the applicant's return to military control and states the applicant began having serious mental issues in 2007.  In early 2008, the applicant told him what had happened at Fort Jackson.  He knows the applicant reported the sexual assault to his chain of command and a chaplain.  The applicant received no help.  He describes the applicant's current mental state and physical condition, and he states the applicant is helping to raise a handicapped child and is involved in his community church.  He asks that the applicant be given an honorable discharge, which he deserves.

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  Paragraph 3-7b provides 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 available evidence 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 he was charged 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.  There is no documentary evidence substantiating his claim that he was sexually assaulted nor is there evidence supporting his claim that he reported the incident at the time and no action was taken.  Unfortunately, his statements alone are insufficient to establish that sexual assault should be considered as a mitigating factor in determining the characterization of his service.  

4.  Based on his lengthy period of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade his 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)                                         AR20130004871





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ABCMR Record of Proceedings (cont)                                         AR20130004871



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