IN THE CASE OF: 

		BOARD DATE:	    8 April 2014

		DOCKET NUMBER:  AR20130014492 


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 that his character of service be upgraded to honorable.

2.  The applicant states his character of service is unjust because he believes at the time he was suffering from post-traumatic stress disorder (PTSD) secondary to personal assault.  He was raped while serving on active duty and he was subsequently diagnosed with human immunodeficiency virus (HIV), which he believes was the direct result of the sexual assault.  He applied for Department of Veterans Affairs (VA) benefits and was denied because of the character of service he received.  In order to maintain his health due to the personal assault, he needs his character of service upgraded.

3.  The applicant provides a VA Form 21-0781a (Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault), dated 15 July 2013.

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 enlisted in the Regular Army on 18 August 1983 and successfully completed training.  He was awarded military occupational specialty 94B (Food Service Specialist).  

3.  On 26 June 1986, the applicant was honorably discharged for immediate reenlistment on 27 June 1986.

4.  On December 1986, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully buying stereo equipment, property of a fellow Soldier, which he then knew had been stolen.

5.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) for the periods 1 February 
1987 through 8 February 1987 and 4 March 1987 through 5 August 1987.

6.  A DA Form 2496 (Disposition Form), dated 7 August 1987, shows the applicant indicated he did not desire a separation medical examination.

7.  On 10 August 1987, he consulted with legal counsel, who advised him of the basis for his pending trial by court-martial, the maximum permissible punishment under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.

8.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that he understood he could be discharged under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he was guilty of the charge against him or a lesser included offense contained therein.  He elected not to make a statement in his own behalf.




9.  On 17 September 1987, he was discharged.  He completed 3 years, 7 months, and 21 days of total active service with 169 days of lost time 
due to AWOL.  His DD Form 214 for the period ending 17 September 1987 shows in:

* item 24 (Character of Service) - under other than honorable conditions
* item 28 (Narrative Reason for Separation) - for the good of the service-in lieu of court-martial

10.  The applicant's medical records are not available for review.

11.  There is no evidence in the applicant's available military service records that shows he was assaulted or that he was diagnosed with having HIV while he was on active duty.

12.  The applicant provides a VA Form 21-0781a, dated 15 July 2013.  He states that in May 1985 during a field exercise in Germany he was assaulted and raped by two Soldiers.  He contracted HIV and became reclusive, his marriage to his fiancé was cancelled, and he began to drink more alcohol because he had nothing else to gain or lose.  He went AWOL and returned only to find that his roommate had stolen some of his items.  Even more depressed and with no one to turn to, he went AWOL again.  He turned himself in and opted to be released from military duty.  His intentions were to make the Army a career and he was looking forward to going to warrant officer school.

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 11 March 1998, the ADRB reviewed and denied the applicant's request for upgrade.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.



15.  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.

16.  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 applicant contends he suffered from PTSD at the time of his offenses.  There is no evidence in the applicant's military service records and he has not provided evidence that shows he suffered from PTSD or that any mental disorder contributed to his misconduct.  

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize her rights.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant further contends that he was assaulted and raped by two Soldiers and contracted HIV as a result.  Unfortunately, there is no evidence to support this statement.

4.  The applicant's records show that he received one Article 15 and had two instances of AWOL, one of which was lengthy.  He had completed 3 years, 7 months, and 21 days of total active service with 169 days of lost time due to AWOL.  Based on these facts, the applicant’s service subsequent to his reenlistment clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general under honorable conditions discharge.

5.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for VA medical benefits.  Every case is individually decided based upon merits when an applicant requests a change in his/her discharge.

6.  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)                                         AR20130014492





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ABCMR Record of Proceedings (cont)                                         AR20130014492



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