IN THE CASE OF:	  

		BOARD DATE:	    7 May 2014

		DOCKET NUMBER:  AR20130014329 


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, in effect:

   a.  correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically discharged due to service-connected military sexual trauma (MST) with full military benefits.  

   b.  an adjustment of the date for her service-connected disability compensation established by the Department of Veterans Affairs (VA) to show an effective date of 7 July 1991.
   
	c.  to personally appear before the Army Board for Correction of Military Records (ABCMR).

2.  The applicant states she was raped and brutalized in 1989 by four Soldiers assigned to the 472nd Military Police (MP) Company, Fort Wainwright, AK.  The period following her rape was a dark and depressing time.  She felt alone because she and the four Soldiers who raped her were MPs; they were the law and she had trusted her fellow Soldiers.  

   a.  She reported the rape to her first sergeant (1SG), 1SG Bxxxx.  She was called in to her company commander's office, Captain (CPT) Cxxxxxxx, for a meeting.  CPT Cxxxxxxx, 1SG Bxxxx, and Sergeant (SGT) Rxxxxxxx, her squad leader, all attended this meeting.  During this meeting she revealed to her company commander that the rape took place at a fellow MP’s home and that 

SGT Rxxxxxxx and three other MPs were involved.  She was very uncomfortable, she was made to feel the rape was her fault, and she was told to keep quiet.  She became very angry about how she was being treated and her response was considered insubordination.  The Provost Marshal and the U.S. Army Criminal Investigation Command (CID) were never notified.  She was demoted to private first class (PFC), placed on extra duty in kevlar and a full ruck-sack; she was subject to a forfeiture of pay as a result of her insubordination.

   b.  She did not understand why her squad leader, SGT Rxxxxxxx, who was implicated in her rape statement, was permitted to attend the meeting with her company commander until her expiration term of service (ETS).  When her ETS date approached she realized that the meeting had been a show of force so that she would keep quiet.  Nothing was done after she revealed the details of her assault and none of her attackers were prosecuted.  

   c.  1SG Bxxx and CPT Cxxxxxxx threatened her honorable discharge and so she kept quiet.  She had to endure harsh ridicule from her attackers in her final days as a Soldier.  Additionally, she was not afforded an exit interview, an exit physical, or informed that she could have gone to a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) to report her MST prior to her ETS.  Prior to her discharge, her chain of command told her that she was not eligible for compensation from the Army or the VA and that if she tried to claim compensation there would be consequences.  

3.  The applicant provides:

* Two self-authored statements, dated 30 July and 5 August 2013
* DD Form 214
* Two VA rating decisions, dated 16 July 2007 
* Letter from the VA, dated 18 April 2011

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 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 ABCMR does not have the authority to establish or adjust dates for service-connected disability compensation established by the VA.  VA policies and decisions do not fall within the preview of this Board.  Therefore, the issue of her VA-established date for service-connected compensation will not be addressed further in this Record of Proceedings. 

3.  The applicant enlisted in the Regular Army on 18 November 1986, served through one extension, and held military occupational specialty 95B (MP).  The highest rank/grade she attained while serving on active duty was specialist (SPC)/E-4.

4.  Her DA Form 2-1 (Personnel Qualification Record) shows she was awarded the Army Good Conduct Medal (1st Award) on 17 November 1989.

5.  There were no medical records available for review with this case.

6.  Her record contains a DA Form 268 (Report to Suspend Favorable Personnel Action (FLAG)), initiated on 28 January 1991.  This was a nontransferable FLAG initiated for adverse action.

7.  Her record contains a DA Form 4126-8 (Bar to Reenlistment Certificate), dated 23 April 1991, which shows:

   a.  On 28 January 1991, she received company grade non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for domestic disturbance (verbal altercation), damaging government property, and being disrespectful toward a noncommissioned officer (NCO).  Her punishment included a reduction in rank from SPC to PFC (suspended) and extra duty for 14 days (7 days suspended).

	b.  Her commander stated that she had demonstrated a lack of respect toward NCOs on several occasions.  She had also demonstrated that she was unable to maintain a level of discipline in her job performance.  Her commander stated that this was a reflection of her lack of self-discipline and motivation to maintain Army standards and policies.  He further stated that her retention on active duty would not be in the best interest of the Army.


	c.  The applicant indicated that she had been furnished a copy of her commander's recommendation, she had been counseled and advised of the basis for the action, and she did not wish to make a statement on her own behalf. She further indicated that she did not wish to appeal the bar to reenlistment.

	d.  The bar to reenlistment was approved on 24 April 1991.

8.  On 7 July 1991, she was honorably released from active duty under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations) by reason of expiration term of service (ETS).  She completed 4 years, 7 months, and 20 days of net active service.

9.  She provided a VA rating decision, dated 16 July 2007, which shows the VA increased her service-connected disability percentage for post-traumatic stress disorder (PTSD) (claimed as mental anguish secondary to personal assault) from 50 percent (%) to 100% effective 29 December 2006.

10.  She provided a letter she received from the VA, dated 18 April 2011, which shows she was receiving a service-connected disability compensation.  Her combined service-connected evaluation was 100%, and she was considered to be totally and permanently disabled due to her service-connected disabilities.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 provides for the separation of Soldiers who have completed their contractual term of service. 

12.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower

* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages: the MEB and the PEB.  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

13.  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 ABCMR will decide cases on the evidence of record.  It is not an 
investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, in this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

2.  Regrettably, her record does not contain any evidence of assault or MST.  Additionally, she did not provide and her record did not contain any medical evidence to show she was treated for rape or assault while serving on active duty or that she met the criteria to undergo an MEB or PEB.  As such, there is an insufficient evidentiary basis with which to grant her 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)                                         AR20130014329



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ABCMR Record of Proceedings (cont)                                         AR20130014329



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