IN THE CASE OF:	  

		BOARD DATE:	    26 November 2013

		DOCKET NUMBER:  AR20130006121 


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 general under honorable conditions.

2.  The applicant states he was raped by three other military men while stationed with the 82nd Airborne Division at Fort Bragg, NC.  He never reported the incident because of the shame.  He was very traumatized by the incident.  He just wanted to get away from the Army and the memory of being raped; so, he left in an absent without leave (AWOL) status.  He was discharged after his fifth AWOL.  He now needs medical and mental help but he cannot receive it because of the characterization of his service. 

3.  The applicant provides his 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's records show he enlisted in the Regular Army on 29 December 1971.  He completed basic combat and advanced individual training and he was awarded/held military occupational specialty 11B (Infantryman). 

3.  He also completed airborne school and he was subsequently assigned to the 1st Battalion, 504th Infantry Regiment, Fort Bragg, NC.  He was awarded or authorized the National Defense Service Medal, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  On 11 July 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 6 to 11 July 1972.  

5.  On 7 August 1972, he was convicted by a special court-martial of one specification of wrongfully possessing marijuana and one specification of wrongfully having a needle and syringe.  The court sentenced him to a forfeiture of pay.  The convening authority approved his sentence on 8 September 1972. 

6.  On 30 October 1972, he was convicted by a summary court-martial of one specification of AWOL from 2 to 15 October 1972.  The court sentenced him to a forfeiture of pay and hard labor without confinement. 

7.  On 13 November 1972, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on three separate occasions. 

8.  The applicant's DA Form 20 (Enlisted Qualification Record) reveals two more instances of AWOL from 5 to 13 February 1973 and from 18 January to 1 February 1973.  

9.  The complete facts and circumstances, including the court-martial charge sheet and separation packet, are not available for review with this case.  However, his records contain:

	a.  DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 6 April 1973, that shows he was pending a discharge under chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel). 


	b.  Special Orders Number 97, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC, on 18 May 1973, ordering his discharge from the Army effective 18 May 1973 with an under other than honorable conditions discharge.

	c.  DD Form 214 that shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 18 May 1973 under the provisions of Army Regulation 635-200, chapter 10, and issued a DD Form 258A (Undesirable Discharge Certificate).  He completed 1 year, 
1 month, and 20 days of active military service and he had 90 days of lost time.

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

11.  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 provided 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 Veterans Administration 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.  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 applicant's record is void of the specific facts and circumstances surrounding his discharge action.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

2.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Unfortunately, there is no evidence in his record and he provides none to corroborate his contention that he was raped by three other service members at Fort Bragg.  There is no police report, report of investigation, commander's inquiry, medical documents, or any other evidence of such contention.  

4.  Based on his overall record of indiscipline, which included two instances of NJP, multiple instances of AWOL, and two court-martial convictions - one of which was for drug-related offenses - the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of 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)                                         AR20130006121





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ABCMR Record of Proceedings (cont)                                         AR20130006121



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