IN THE CASE OF:	  

		BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130019314 


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 discharge under honorable conditions (general) to honorable.  He also requests amendment of his DD Form 214 (Report of Separation from Active Duty) to remove any reference to his discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and lost time.

2.  He states the disciplinary issues that led to his general discharge were related to military sexual trauma (MST).  He was assaulted by a male noncommissioned officer and he was experiencing the psychological consequences of those assaults.  He opines that the Army Discharge Review Board (ADRB) properly concluded that his misconduct of being absent without leave (AWOL) was the result of his mental health issues.  Therefore, his discharge was upgraded to general.

	a.  He offers that the ADRB was missing one "piece of the puzzle," the fact that he was a victim of MST while stationed at Fort Lewis, WA.  He states he was physically assaulted on more than one occasion and his attacker incorrectly assumed he was homosexual.  He recalls being beaten up by another Soldier on a bus.  He states his injuries were severe enough to require treatment in a civilian medical facility.  Given the shame and embarrassment he felt over the incidents, he never reported any of the sexual or physical assaults to his superiors.

	b.  He states that not long after his return to Fort Lewis, he married and moved off post.  Soon after their marriage, he and his wife were experiencing marital problems and he was placed on orders to Germany.  While in the process of traveling to Germany, he took an overdose of medicine.  Upon his arrival in Germany, he was hospitalized and later transferred back to Fort Gordon, GA.  A few days after he was discharged from the hospital, he was AWOL.

	c.  The applicant states that since his discharge, he has gotten on with his life. He completed his associate's degree and has taken other college courses.  He has received training as a water treatment specialist and has worked for over 20 years as a water treatment plant operator/chief operator.  He is also qualified as an emergency medical technician and has served as a volunteer with a local lifesaving crew.

3.  He provides:

* DD Form 214
* self-authored statement
* Army Regulation 635-200, chapter 10, discharge proceedings

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 29 April 1972.  He was honorably discharged on 29 January 1973 for immediate reenlistment and reenlisted the following day.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on two different occasions.

	a.  On 1 June 1972, while at Fort Jackson, SC in training, he accepted NJP for being AWOL from 27 to 29 May 1972.  His punishment consisted of a forfeiture of $65.00 pay per month for 1 month, restriction to the company area for 14 days, and 14 days of extra duty.

	b.  On 18 June 1973, he accepted NJP for being absent from his appointed place of duty on 14 June 1973.  His punishment consisted of reduction to the grade of private/E-1, (suspended for 30 days), a forfeiture of $75.00 pay per month for 1 month, restriction to the company area for 7 days, and 14 days of extra duty.

4.  On 18 June 1973, the applicant appealed this NJP to the battalion commander based on his personal problems which he stated he had tried to work out.  He offered that he went to the proper authorities for assistance and they tried to help him.  He stated he would like to discuss his personal problems with the commander and felt the reason he was AWOL was justified.  However, he opined that the punishment imposed was too harsh.

5.  On 21 June 1973, the company commander wrote a letter of rebuttal to the battalion commander concerning the applicant's appeal of his Article 15.  The company commander stated the NJP imposed against the applicant was just and should be duly executed.  He said the command was not made aware of any personal problems concerning the applicant.  Since being assigned to the unit in February 1973, the applicant's efficiency was fair and his conduct was below the standards expected of a new Soldier.  He was in several fights starting the day he was assigned.  The fights seemed to always occur when the applicant had been drinking.

6.  On 25 June 1973, the applicant's Article 15 appeal was granted in part.  So much of the punishment as pertained to a forfeiture of $75.00 per month for 1 month was suspended for 60 days.

7.  On 22 November 1974, charges were preferred against him for being AWOL from 27 August to 19 November 1974.

8.  On 25 November 1974 after consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

9.  The applicant stated he was making the request of his own free will, he was afforded the opportunity to speak with counsel and was advised by counsel that he might be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all Veterans Administration benefits, and he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his behalf.

10.  In his statement, he said he wanted to get out of the service because he could no longer hack it in the Army.  He added that he did not want to stay in the Army a day longer because he had problems at home.  His wife and mother wanted him to get out of the Army and he wanted to get out even more.

11.  The applicant's records are void of a physical or mental examination or any evidence that shows he was diagnosed with having psychological problems.

12.  In an interview, undated, conducted by the Commander, U.S. Army Personnel Control Facility, Fort Bragg, the commander stated that he personally interviewed the applicant.  The applicant stated he was aware of the nature of the interview and the consequences of an Undesirable Discharge Certificate; however, he desired elimination from the service under the provisions of Army Regulation 635-200, chapter 10.  He said the applicant stated that his AWOL was caused by family problems that required his presence at home.  He further stated he was aware of the possible consequences if discharged and he still desired to leave the service permanently.  The commander recommended the applicant's discharge and the issuance of an Undesirable Discharge Certificate.

13.  On 2 January 1975, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

14.  On 20 January 1975, he was discharged under other than honorable conditions.  His DD Form 214 shows he was issued an Undesirable Discharge Certificate.  It also shows he completed 2 years, 4 months, and 26 days of net active service during this period with 84 days of lost time.

15.  On 1 April 1975, he appealed to the ADRB for an upgrade of his discharge.  In the ADRB brief, dated 30 July 1975, it noted the applicant's medical records revealed he was diagnosed as having latent-type schizophrenia.  He was medically evacuated from Germany to the U.S. Medical Center, Fort Gordon, GA, where he was diagnosed as having a personality disorder (i.e., immature, chronic, moderate) with an improper use of drugs.  The consultation report listed his diagnosis as "personality disorder, immature, chronic, severe" and not in the line of duty, existed prior to service.  On 26 November 1975, the ADRB upgraded the applicant's discharge to general under honorable conditions.  The specific reason for the decision is not contained in the available records.

16.  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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that being assaulted by a male noncommissioned officer at Fort Lewis led to his indiscipline.  There is no evidence and he has not provided any evidence to show he was a victim of MST and this trauma led to his indiscipline.  Further, there is no evidence to show he sought assistance with his problem through his chain of command, chaplain, or an outside agency.  In addition, his record of misconduct started before he arrived at Fort Lewis.  Therefore, his contention is not supported by the evidence of record.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The records also shows he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

3.  Although the ADRB upgraded his discharge to general under honorable conditions, the specific reason for the decision is not contained in the available records.

4.  His record of service included two NJP's and 84 days of lost time.  Based on his record of indiscipline, he is not entitled to have his discharge upgraded to honorable.  Likewise, he is not entitled to have his DD Form 214 amended to remove any reference to his discharge authority or lost time.

5.  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 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)                                         AR20130019314



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ABCMR Record of Proceedings (cont)                                         AR20130019314



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