IN THE CASE OF:	

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130007991 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he received a medical or honorable discharge.

2.  The applicant states, in effect:

   a.  On 18 August 1969, he was forced into the Army at the age of 17 by his mother who told him she did not care if he got killed in Vietnam.

   b.  While in boot camp at Fort Bragg, NC, he was sexually assaulted multiple times and anally penetrated by a drill sergeant.  He did not understand why this was happening to him and was afraid because the drill sergeant told him he would kill him if he ever mentioned what had happened.  He is now mentally disabled and believes his disabilities are related to his military service.

   c.  He went absent without leave (AWOL), involuntarily, due to being sexually assaulted in boot camp by a male drill sergeant while the company officer watched and masturbated.  
   
   d.  While being returned from AWOL, he was placed in the Personnel Correctional Facility at Fort Meade, MD, where he was gang raped by inmates   and contracted a sexually transmitted disease.
   
   e.  He believes his discharge is illegal since he never signed his DD Form 214 and he does not remember ever agreeing to this type of discharge.
   f.  His discharge is unconstitutional.  He did not receive a waiver or in-person hearing; therefore, he did not receive due process.  
   
   g.  He is now 61 years old and hasn't been able to discuss the incidents with anyone due to shame and fear until September 2013, when he received treatment by the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD) caused by military sexual trauma (MST).   

3.  The applicant provides:

* self-authored statements
* DD Form 214
* a two-page excerpt from the Constitutional Rights of Military Personnel
* 3 Standard Forms (SF) 88 (Report of Medical Examination)
* SF 89 (Report of Medical History)
* a document titled Request for Discharge for the Good of the Service
* DA Form 8-275 (Clinical Record Cover Sheet)
* SF 514 (Clinical Record - Laboratory Reports)
* SF 600 (Chronological Record of Medical Care)
* 15 pages of Progress Notes

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 military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents provided by the applicant to conduct a fair and impartial review of his case.   

3.  His records show he was born on 7 July 1952.  He enlisted in the Regular Army on 18 August 1969 at the age of 17 years, 1 month, and 12 days.  
4.  The complete facts and circumstances surrounding his discharge are not available for the Board's review.  However, his DD Form 214 shows he was discharged on 27 December 1971, in accordance with the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (For the Good of the Service).  The applicant's Separation Program Number (SPN) Code was "246" and his character of service was "under conditions other than honorable."  Item 26a (Non-Pay Periods/Time Lost) of this document shows the applicant had time lost from 12 November to 11 December 1969; 24 December 1969 to 17 January 1970; 5 February to 30 April 1970; 1 May to 
14 July 1970; 28 July 1970 to 18 August 1971; and from 15 September to 
21 October 1971, for a total of 651 days.  This document also shows that at the time of his discharge he had completed 7 months and 9 days total active service.

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

6.  The applicant provides evidence which shows he was diagnosed with severe scoliosis and limitation of motion on his entrance physical.  Evidence which he provides shows he was receiving treatment for his back on 24 April 1970.  He received an x-ray, an orthopedic consult, medication for pain, and light duty.  He also provides evidence which shows he received treatment for a urethral discharge.

7.  The applicant provides 15 pages of Progress Notes which show he is currently receiving treatment from the VA for paranoid schizophrenia and PTSD related to MST as reported by the applicant.  

8.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers and the criteria governing the issuance of honorable, general, and under other than honorable conditions (UOTHC) discharge certificates.  Chapter 10 of this regulation provided that a member who had committed an offense or offenses, for which the punishment for any included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the Service.

9.  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.  

10.  Army Regulation 635-200, 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.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  The applicant's separation packet was not available for the Board's review. However, there is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  The applicant has not provided sufficient evidence to show he was unjustly discharged.  Therefore, in the absence of evidence to the contrary it reasonable to presume that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.

4.  The applicant contends that he was the victim of MST throughout his period of service and that he contracted a sexually transmitted disease as a result of the trauma.  Unfortunately, at present there are no military records and the applicant has provided insufficient evidence to support this claim.  In addition, there is insufficient evidence to show the applicant's misconduct was a direct result of the abuse he claims.  

5.  With respect to a medical discharge, there is no evidence in his records which indicates he was physically or mentally unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  In the applicant's case, it is presumed he underwent a separation physical as well as a mental status evaluation prior to his discharge.  The doctor/physician would have had to find him medically qualified and/or psychiatrically cleared for separation.  

6.  At the time of his voluntary discharge, he had completed 7 months and 
9 days active service and had 651 days of time lost due to being AWOL.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge to either an honorable or a general discharge.

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130007991



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ABCMR Record of Proceedings (cont)                                         AR20130007991



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