IN THE CASE OF:
BOARD DATE: 1 July 2014
DOCKET NUMBER: AR20130019500
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 upgrade of his uncharacterized discharge.
2. The applicant states, he was raped at the age of 18 while serving in the Army. He reached out to his elders and peers but he was thought to be a homosexual and his allegations were dismissed. This was an injustice that he still lives with today. What happened to him changed his life for the worse. It is bad enough that he has to live with being a rape victim but to be described as a dishonorable person is condoning the terrible thing that happened to him.
3. The applicant provides no additional evidence.
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 record shows he enlisted in the Regular Army on 25 March 1987. The highest rank/grade he attained while serving on active duty was private/E-1.
3. On 1 April 1987, he underwent a mental status evaluation. The examining psychiatrist diagnosed him with a personality disorder. He noted that the applicant was hospitalized on 30 March 1987 for evaluation of suicide threats related to his wish to return home to Puerto Rico and dis-emancipate himself with his mother. The applicant states that any attempt for him to move away from his mother causes her to become despondent, uncontrollable, and exhibit bizarre behavior. According to the applicant's 1SG, the applicant had been offered a brief leave to return home to attempt a resolution but the applicant found this unsatisfactory and staged a theatrical demonstration of harming himself and he was again hospitalized. The applicant then demanded instant compliance from his unit and immediate release from active duty, and a plane ticket home. His misconduct will persist as long as he believes that he can secure cooperation. In these situations there is virtually never any benefit with attempts to rehabilitate, treat, or counsel. The examining psychiatrist recommended administrative separation in accordance with paragraph 5-13, Army Regulation 635-200 (Personnel Separations Enlisted Personnel), based on his personality disorder.
4. His record contains a DA Form 4856 (General Counseling Form) dated 2 April 1987 that indicates the applicant was found in the fire escape stairwell appearing to be hurt. It was reported that the applicant was observed banging his head against a wall locker and the window next to it while mumbling in Spanish, "Mommy, why?" He was taken to the first sergeant (1SG). Later the applicant was found lying in the stairwell with his eyes closed as if unconscious. An ambulance was called but before they arrived, he opened his eyes and began saying again "Mommy, why?" His behavior seemed to be the result of his mother being hospitalized.
5. On 2 April 1987, his immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of a personality disorder. His commander remarked the basis for separation was the applicant's personality disorder and inability to adapt to military environment. This memorandum indicated that if in an entry-level status (less than 180 days of continuous active duty) his service would be uncharacterized.
6. On the same day, he acknowledged receipt of his notification of pending separation action and he was advised of the basis for the contemplated action to separate him for a personality disorder under the provisions of paragraph 5-13 of Army Regulation 635-200. He waived consulting counsel and elected not to submit a statement in his own behalf.
7. The separation authority approved his separation under the provisions of paragraph 5-13, Army Regulation 635-200, due to a personality disorder and directed that he receive an entry-level separation with service (uncharacterized).
8. On 17 April 1987, he was discharged accordingly. He completed 23 days of total active service.
9. His record is void of any medical evidence of rape or any reported incident of rape.
10. There is no indication the applicant applied to the Army Discharge Review Board for a change to his discharge.
11. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-13 provides that a Soldier may be separated for personality disorder not amounting to disability which interferes with assignment to or performance of duty. The regulation requires that the condition is a deeply-ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty. It further specifies that the service of Soldiers separated under this provision will be characterized as honorable unless in an entry-level status, in which case it will be uncharacterized. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time the separation action is initiated.
DISCUSSION AND CONCLUSIONS:
1. In accordance with regulation, members may be separated under the provisions of paragraph 5-13, Army Regulation 635-200, if they suffer from a personality disorder not amounting to disability which interferes with assignment to or performance of duty. The regulation requires that the condition is a deeply-ingrained maladaptive pattern of behavior of long duration that interferes with the Soldiers ability to perform duty.
2. The applicant contends he was raped and rather than provide him with assistance, he was discharged. However, his record is void of any documentation, and he has not provided evidence, to support this contention. The record confirms he was diagnosed with a personality disorder by competent medical authority. Based on this diagnosis, his separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
3. An uncharacterized discharge is not meant to be a negative reflection of a Soldiers military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request for an honorable discharge.
4. In view of the foregoing, there is no 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) AR20130019500
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