IN THE CASE OF:	  

		BOARD DATE:	 28 January 2014  

		DOCKET NUMBER:  AR20130009231 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states:

	a.  He is a victim of post-traumatic stress disorder (PTSD) and sexual trauma which caused his discharge.  He has tried to get help from the Department of Veterans Affairs (VA) but they have been unhelpful.  The VA representative at the honor camp he is incarcerated at told him to wait and come back in 6 months.

	b.  He was in the Army from July 1979 to August 1983.  When he arrived to his assignment in Germany he was only 17 years of age, not very mature, and young and scared.  He was put in a unit and was expected to conform.  He started being sexually abused by the superiors in his unit; specifically, a specialist four (SP4)/E-4, staff sergeant (SSG)/E-6, and a sergeant first class (SFC)/E-7.  

	c.  He went on leave in 1981 to get away from what was happening to him.  While on leave, he started having problems with the law and he was jailed for a felony conviction.  It didn't matter to him because at least he didn't have to go back to his unit.  When he was released, he turned himself in to take care of his military obligation and he took an under other than honorable conditions discharge.

	d.  All of his memories of the abuse were repressed but he believes that the root of his 30 years of legal problems started with the sexual abuse he was put through while he was in the service.  It has been only in the last 3 to 4 years that he started fully remembering what was done to him.  He was physically, mentally, and sexually abused.  He was held down while the SFC forced himself on him.  He was beaten so as not to tell and he was forced to perform acts that he prefers not to discuss.

	e.  Over the past 30 years he has been in and out of jails and prisons.  He has been divorced three times and has memories in his head of all the people in his unit who did all kinds of things to him.  He is sure his life would have been different if he had not gone through that hell.  He now sits in a prison, his fourth prison sentence in four different states, and is approaching his release.  He needs help with his PTSD or sexual trauma but the VA said since he does not have an honorable discharge they cannot even talk to him. 

3.  The applicant provides a letter.

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 U.S. Army Reserve under the Delayed Entry Program on 28 July 1979.  His DD Form 1966/5 (Record of Processing) shows he listed three offenses of runaway in 1979 and he answered in the affirmative to the questions: 

* Have you even been arrested, charged, cited or held by any law-enforcement or juvenile authorities in the United States or in a foreign country regardless of whether the citation or the charge was dropped or dismissed or you were found not guilty? 
* Have you ever been detained, held in, or served in, any jail or reform or  industrial school or any juvenile facility or correctional institution in the United States or in a foreign country? 

3.  He enlisted in the Regular Army on 31 July 1979 when he was 17 years and 1 month of age and he held military occupational specialty 31M (Multichannel Communications Equipment Operator).  On 12 January 1980, he was assigned to Company B, 123rd Signal Battalion, Germany. 

4.  On 4 March 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty.

5.  On 5 September 1981, he was reported as absent without leave (AWOL) from his assigned unit.

6.  His records contain a DA Form 4384 (Commander's Report of Inquiry/Unauthorized Absence), dated 17 September 1981, wherein his immediate commander stated he (the applicant) was on leave and reported AWOL for failure to return from leave.  In a second DA Form 4384, undated, his commander stated a letter from his (the applicant's) mother, dated 28 September 1981, stated he had been writing bad checks, wrecked and abandoned a rental car, and was spending money on drinks and drugs.

7.  On 4 October 1981, he was dropped from the rolls (DFR) as a deserter. 

8.  On 13 January 1982, he was apprehended by civilian authorities and returned to military control.  He was assigned to the Personnel Confinement Facility (PCF), Fort Ord, CA.

9.  On 18 January 1982, he was reported as AWOL from his assigned unit and DFR as a deserter.  On 6 October 1982, he was apprehended by civilian authorities and returned to military control at the PCF, Fort Ord, CA.  However, on 20 October 1982, he was arrested by civilian authorities and was confined to the Monterey County Jail, Monterey, CA.  

10.  On an unknown date, his unit was notified that he had been convicted of two counts of grand theft auto on 9 December 1981, one count of grand theft auto on 15 April 1982, and that he was sentenced to 1 year and 1 month in the Monterey County Jail and 5 years probation.

11.  His records contain an undated Statement of Appeal of Civil Conviction wherein the applicant indicated he was convicted of three counts of auto theft and he did not intend to file an appeal of his conviction.

12.  On 15 April 1983, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - civilian convictions due to his conviction and sentence for three counts of grand theft auto.  

13.  On 15 April 1983, the applicant acknowledged receipt of the commander's intent to initiate separation action against him and he acknowledged he was advised of the basis for the contemplated separation action, the type of discharge he could receive, and of the procedures and rights available to him.  He declined to seek legal counsel, waived consideration of his separation action by a board of officers, and declined to submit a statement in his own behalf.

14.  His immediate commander subsequently submitted a request for his discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct - civilian conviction.  His commander stated the applicant was convicted of three counts of grand theft auto; two counts on 9 December 1981 and one count on 15 April 1982.  He was sentenced to 1 year and 1 month in the Monterey County Jail, Montgomery, CA, and 5 years probation 

15.  On 26 and 27 April 1983, respectively, his intermediate and senior commander recommended approval of the discharge action.

16.  On 28 April 1983, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct - frequent involvement in incidents of a discreditable nature and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 16 May 1983, he was discharged accordingly.

17.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 14 by reason of misconduct - civilian conviction with an under other than honorable conditions characterization of service.  He completed 2 years, 1 month, and 21 days of net active service with 261 days of lost time due to being AWOL and/or in confinement.

18.  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.

19.  His record is void of any evidence that shows he was ever diagnosed with PTSD or any other behavioral health condition during his military service or that he ever reported he had been mistreated or suffered sexual trauma during his military service.

20.  The applicant provides a letter, dated 30 April 2013, to himself from the VA Regional Office, Cheyenne, WY, wherein a VA manager stated the applicant's records showed he received an under other than honorable conditions discharge and was AWOL for a continuous period of 261 days.  A former service member who was determined to be AWOL for 180 continuous days was barred from receiving VA benefits.  In addition, a review of his records showed no indication of any type of sexual trauma.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

22.  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.

23.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that while the applicant was in a deserter status he was convicted by civilian authorities of three counts of grand theft auto and sentenced to over 1 year in jail and 5 years probation.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  The applicant contends that his discharge should be upgraded because he was young and not very mature at the time of his service, and that he suffered PTSD and sexual trauma while in the service.  Records show he was almost 19 years of age at the time of his first offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Unfortunatly, his record is void of any evidence and he has not provided any evidence that supports his contention that he suffered from PTSD and/or sexual trauma during his military service. 

4.  His record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for failing to go to his place of duty.  In addition to his civilian convictions, he went AWOL on two separate occasions for extended lengths of time and had over 260 days of lost time at the time of his discharge.

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20130009231





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ABCMR Record of Proceedings (cont)                                         AR20130009231



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