BOARD DATE: 19 June 2014
DOCKET NUMBER: AR20130016594
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 undesirable discharge to a general discharge.
2. The applicant states:
* from the age of 7, he was repeatedly physically and sexually abused by his stepbrother who was taller and outweighed him
* his brother would trap him and pull his pants down and penetrate him with multiple objects
* he was also forced to touch his stepbrother and when he was done he would inflict pain upon the applicant
* he was told not to tell anyone under the threat of physical violence
* when he joined the military, he did not know the shower facilities were shared and that scared him so he went absent without leave (AWOL)
* he is sorry his childhood had such an effect on him, but he would like to be considered for an upgrade of his discharge
* he felt it was his fault so he never told anyone until he was 45 years old
3. The applicant provides a:
* DD Form 293 (Application for Correction of Military Record Under the Provisions of Title 10, U S. Code, Section 1562)
* self-authored statement
* 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 enlisted in the Regular Army on 13 February 1971.
3. His record contains a DD Form 458 (Charge Sheet) which shows court-martial charges were preferred against him on 7 October 1971 for being AWOL from:
* 16 March to 19 April 1971
* 3 May to 19 July 1971
* 23 July to 28 September 1971
4. The specific facts and circumstances surrounding his discharge processing are not available for review. However, the available evidence includes a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that contains the authority and reason for his discharge.
5. The applicant's DD Form 214 shows he was discharged on 26 November 1971 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service, with the issuance of Undesirable Discharge Certificate. The DD Form 214 he was issued confirms he completed a total of 4 months and 20 days of active service and he had 178 days of lost time.
6. The applicant submitted a self-authored statement wherein he indicated that
due to the sexual trauma he underwent at the hands of his stepbrother:
* he joined the Army with grandiose ideas of heroism and making up for his childhood
* he slit his wrist while in the Army and was told by the ambulance attendants that he needed a bigger knife, which they offered
* the psychologist told him to grow-up
* none of this appears in his official records
* he decided to go AWOL to escape the new nightmare
* he suffers from Post-Traumatic Stress Disorder (PTSD)
* some of his wounds were present prior to service and will continue for a lifetime
7. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
8. He provided a letter from a doctor at Mercy Clinic Psychiatry to the Department of Veterans Affairs (VA) indicating the applicant had PTSD as a result of his childhood trauma that contributed to him going AWOL.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A discharge Under Other Than Honorable Conditions (at the time, an Undesirable Discharge) would normally be given an individual who was discharged for the good of the Service.
b. 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.
c. 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. Although the applicant's record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant's service.
2. His record shows he went AWOL numerous times and had 178
days lost time. As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory.
3. In view of the foregoing, there is an insufficient evidentiary 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) AR20130016594
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ABCMR Record of Proceedings (cont) AR20130016594
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