IN THE CASE OF:	  

		BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130016891 


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 (UOTHC) discharge to an honorable discharge.

2.  The applicant states:

   a.  His discharge should be upgraded to honorable due to new evidence that was not available at the time of his initial discharge and his first request for an upgrade.  This evidence only became available to him in January 2010.  The basis of his request is in regard to several sexual and physical assaults by his attacker, Drill Sergeant Cxxxxxxxx, while he was stationed at Fort McClellan, AL, from April to August 1986 during basic and advanced individual training (AIT).

   b.  His attacker was eventually court-martialed for the offenses against other enlisted personnel under his command and supervision.  He did not come forward due to how the other individuals who brought claims against the attacker were treated by other enlisted personnel and comrades of the attacker.  He also did not come forward due to a vicious attack by his attacker in August 1986 when his attacker came up behind him and choked him out.  He was terrified that the attacker was killing him.  The attacker told him not to say anything about what he had done or the next time he wouldn't wake up.  He wholeheartedly believed the attacker and when he was given a leave/pass he never came back.

   c.  His entire time at Fort McClellan was spent trying to avoid the attacker's advances and attacks when it should have been about getting accustomed to the Army and being able to trust those in a position of authority such as his attacker. 
	d.  He is submitting a diagnostic letter from Dr. Lxxxx Hxxx of the Department of Veterans Affairs (VA) Mental Health Department in Military Sexual Trauma (MST) detailing the affect the actions of his attacker has had on his life over the last 20-odd years.  He was awarded a 70 percent service-connected disability rating from the VA for post-traumatic stress disorder (PTSD).

3.  The applicant provides copies of the following:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 28 January 1987
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* letter from Dr. Hxxx
* VA Rating Decision and allied documents
* VA Form 21-4142 (Authorization and Consent to Release Information to the VA)
* Hampshire Sheriff's Office, Jail and House of Correction, Medical Assessments and Treatments

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, in pay grade E-1, on 1 April 1986. He completed basic combat training and AIT and was awarded the military occupational specialty of military police.  

3.  Section VII (Current and Previous Assignments) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was enroute to Germany when he was reported absent without leave (AWOL) on 24 August 1986.  He was 


dropped from the rolls of his organization on 23 September 1986 and was returned to military control on 10 October 1986.

4.  His record contains a Personnel Control Facility Interview Sheet, dated 11 October 1986, wherein he stated that he went AWOL because he tried to get out during basic training and he realized the military was not for him.  He was told by his drill sergeant that he couldn't get out.  He was unable to adapt to military life so he went home and decided not to go back.  He wanted to be discharged from the military as it was a mistake in the first place.  He was then and currently is under a lot of emotional pressure.

5.  On 20 October 1986, a DD Form 458 (Charge Sheet) was completed by the Commander, Personnel Control Facility, Fort Dix, NJ.  The applicant was charged with one specification of being AWOL from 24 August through on or about 10 October 1986.

6.  On 20 October 1986, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he could be discharged UOTHC and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

7.  On 18 December 1986, the separation authority approved his discharge and directed the issuance of a UOTHC discharge.  

8.  He was discharged accordingly in pay grade E-1 on 28 January 1987.  He was credited with completing 8 months and 11 days of net active service and 47 days of time lost.

9.  His record is void of any evidence he sought assistance from his chain of command or any other authority for the alleged attacks/assaults during his period of active duty.

10.  He provided copies of Vet Center documentation showing he met the current diagnostic criteria for a diagnosis of PTSD and all of his symptoms had been present since his MST experiences and continued to impact his daily life to a significant degree.  The applicant related that he was physically and sexually assaulted by an officer and due to that did not return from leave while in the military.  He never reported his MST as his perpetrator threatened to kill him if he did and he believed that would happen.  

11.  He also provided a copy of his VA Rating Decision which shows he was awarded him a 70 percent service-connected disability for PTSD effective 31 August 2011.

12.  He further provided copies of his medical assessment and treatment while in the custody of the Hampshire Sheriff's Office for several medical conditions and drug addiction.

13.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  A UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - a honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be 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.  The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation       635-200 are voluntary requests for discharge in lieu by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  He stated that the military was not for him so he went AWOL and he wanted to be discharged.

2.  There is no evidence of record and he did not provide sufficient evidence showing he was sexually or physically assaulted during his period of active duty or that the alleged assaults or PTSD/MST prevented his satisfactory completion of his term of enlistment.  In fact, the evidence shows he completed AIT, was awarded a military occupational specialty, and was enroute to Germany, away from his attacker, when he went AWOL.  

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge to general or honorable.

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)                                         AR20130016891



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ABCMR Record of Proceedings (cont)                                         AR20130016891



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