BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130017734 


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 the reason for his discharge be changed to early release from active duty due to military sexual trauma rather than for failure to adapt. 

2.  The applicant essentially states:

* he was assigned to a unit in Korea that had a negative reputation due gambling, fighting, and black-marketing activities
* being young and naïve he was eventually influenced by the negative activities
* after realizing how much these behaviors affected his military career, he began to separate himself from the gang parties and black-marketing
* as a result, he was harassed and one night sexually assaulted by another person
* he informed his platoon sergeant who told him to get over it, a comment that contributed to him going absent without leave (AWOL)
* his commander persuaded him to return to duty, was sympathetic to what had happened, and initiated action which led to his early release
* he was released with a severe disorder without any knowledge or information regarding his need for professional help
* he returned home after the assault in distress, angry, with nightmares, avoiding family, and living in isolation


* after having over fifty employers, he stopped working not realizing the idle time would add to his problems and cause him to become suicidal
* he was admitted to a Department of Veterans Affairs (VA) hospital and was finally able to discuss the sexual assault
* in 2009, he filed a claim for post-traumatic stress disorder, which was denied 
* during the appeals process he learned his discharge was for inability to adapt to military life
* his discharge should have been as result of the change in his behavior due to sexual assault

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a four-page self-authored statement utilizing a VA Form 21-4138 (Statement in Support of Claim).

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's records show he enlisted in the Regular Army on 10 February 1976.

3.  His record contains:

	a.  A counseling statement, dated 17 January 1977, which shows he was counseled for violating the regular pass policy on 16 January 1977.

	b.  Three DA Forms 2496-1 (Disposition Form), dated between 9 February and 12 April 1977, which show he was counseled for violating the pass policy for the third time within 30 days, sleeping on duty, two instances of failing to be at his appointed place of duty, and lying to a noncommissioned officer.

	c.  His disciplinary history shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions for the following offenses:

* over-purchasing his authorized amount of controlled items on 15 January and 15 February 1977 
* over-purchasing his authorized amount of liquor on 15 March 1977
* having in his possession a partially-burned marijuana cigarette on 25 May 1977

4.  On 2 June 1977:

	a.  The applicant was notified by his unit commander that action was being initiated to separate him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37, for failure to maintain acceptable standards for retention under the Expeditious Discharge Program (EDP).  He cited the applicant's receipt of numerous adverse counseling statements; four Article 15's, three for ration control violations and one for marijuana usage; suspicion of black-marketing; and being incapable of fulfilling non-judical punishment.  He stated that although the applicant was not violent, he did not respond to counseling.  The commander advised the applicant that he was being recommended for a general discharge.

	b.  The applicant acknowledged receipt of the proposed separation action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counsel, the applicant declined his rights to legal counsel and to submit a statement in his own behalf.

5.  On 20 June 1977, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-37, by reason of failure to meet acceptable standards for continued military service.  He directed the applicant be furnished a General Discharge Certificate.  

6.  The applicant was discharged accordingly on 6 July 1977 under the EDP.  His DD Form 214 shows he had completed 1 year, 4 months, and 27 days of active military service.

7.  The applicant's record is void of any indication he informed or sought help from his chain of command, the military police, hospital, or chaplain for sexual assault or mental health issues.

8.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

   a.  Paragraph 5-37, then in effect, provided for the EDP.  This program provided for the discharge of individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued a general under honorable conditions or honorable discharge, as appropriate.

	b.  Paragraph 3-7a, currently in effect, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards.  He accepted NJP on four occasions, failed to make improvements in his performance, and demonstrated an apathetic attitude towards the U.S. Army.  Accordingly, his immediate commander initiated separation action against him and recommended a general discharge based on his record of misconduct and non-performance.  

2.  The applicant's record is void of any indication he informed or sought help from his chain of command, the military police, hospital, or chaplain for sexual assault or mental health issues.

3.  In view of the foregoing, there is no basis for granting the applicant's request.






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)                                         AR20130017734



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ABCMR Record of Proceedings (cont)                                         AR20130017734



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