BOARD DATE:	  30 April 2014

		DOCKET NUMBER:  AR20130016001 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect, that while assigned to the 188th Military Police Company, 504th Military Police Battalion, Vietnam, he was hypnotized by Soldiers assigned to Criminal Investigation Division (CID) and sexually violated.  He contends that his misconduct was a direct result of this incident.

3.  The applicant provides:

* a self-authored statement
* his DD Form 458 (Charge Sheet) 
* his Discharge Packet with allied documents
* a Department of Veterans Affairs (VA) memorandum, dated 4 August 2012

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 9 October 1969.  He completed his initial training and was awarded military occupational specialty (MOS) 94A (Food Service Apprentice).  

3.  Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows he was AWOL from:

* 14 -23 August 1970
* 15-17 September  1970
* 18 November 1970-7 January 1971 

4.  Summary Court-Martial Order Number 75, issued by Headquarters, 4th Training Brigade, Fort Knox, KY, dated 4 September 1970, shows that consistent with his pleas he was found guilty of being AWOL from 14 -24 August 1970.

5.  He was assigned to the Republic of Vietnam (RVN) from 11 January to 
17 June 1971.

6.  A DD Form 458 (Charge Sheet), dated 28 March 1971, shows he was charged with:

* disobeying a lawful order from a superior commissioned officer
* disobeying a lawful order from his superior noncommissioned officer
* failing to go to his appointed place of duty (five specifications)
* breaking restriction

7.  On 5 May 1971, he consulted with counsel and he voluntarily requested 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.

8.  He indicated he understood that if his request were accepted, he could be discharged under other than honorable conditions and issued an Undesirable Discharge Certificate.  He further acknowledged he understood if he received a discharge 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, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  He elected not submit statements in his own behalf.  

9.  The available evidence shows his chain of command recommended he be discharged for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge.

10.  On 6 June 1971, the appropriate authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of an undesirable discharge, and reduction to the lowest enlisted grade.

11.  On 14 June 1971, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 7 months and 3 days of total active service with 33 days of lost time.

12.  The applicant provides a statement in which he contends that during his tour of duty in the RVN he was hypnotized by Soldiers assigned to the CID.  He vaguely remembers waking up naked and feeling like he had been sexually violated.  He was disoriented and was unable even remember what unit he was assigned to and he lacked the ability to get into his proper uniform.  He was later confined and while incarcerated he accepted an offer to go home rather than stay in prison.  Once at home he was unable to adjust.  He became a heroin addict in order to escape the shame of what happened to him in the RVN.  Eventually, he recovered from his addiction but now he suffers from post-traumatic stress disorder (PTSD), depression, and diabetes (Type1 and Type 2).  He further contends that during an earlier appeal to upgrade his discharge he indicated that he had been using drugs because he was ashamed by what actually happened to him in the RVN.

13.  The Army Discharge Review Board disapproved his request for an upgrade of his discharge 3 June 1974.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.
	
	a.  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.

   b.  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 requests upgrade of his discharge under other than honorable conditions.

2.  He contends, in effect, that his misconduct was the direct result of being hypnotized and sexually assaulted while on active duty; however, he did not provided any evidence, nor does the record contain evidence, to support his contentions.  His disciplinary history includes a court-martial conviction and 
33 days of lost time.  His record of AWOL started before he ever arrived in Vietnam.  This misconduct rendered his service unsatisfactory.

3.  The evidence of record confirms he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  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)                                         AR20130016001





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ABCMR Record of Proceedings (cont)                                         AR20130016001



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