BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140000211 


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 reconsideration of his previous request for an upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  He states:

	a.  Whether male or female, no one deserves to be raped.  He can’t help to wonder, if he had been a female, if the outcome might have been different.  He doesn't know how rape trauma affects a female; he can only speak for himself.  Being a man raped by another man was beyond traumatic.  He was a Soldier and a second-degree black belt, and he couldn't defend himself (mainly because of his intoxication).  He still didn't deserve that.  He was not breaking any laws, but the man who raped him did.  He tried to find the man many nights because he was going to kill him and he would have.

	b.  He only had one mental status evaluation on 26 September 1988.  Some of his chain of command told him he was going to the hospital for in-patient treatment, but instead his commanding officer told him he was a waste of the taxpayers' money, which he wasn't.  He was a good Soldier.  Some of his chain of command were pulling for him because he was a good Soldier.  His company commander informed him that he would be kicked out of the Army.  That was traumatic to him in itself.  

	c.  Unfortunately, before joining the Army, he was already mentally ill.  He had anxiety, depression, and undiagnosed bipolar disorder.  In 1985 or 1986, he attempted suicide for the first time.  He wound up in a Maryland hospital.  He was age 17 at the time.  He wondered if that was why he wasn't given live ammunition at the Pershing II missile site when all tower guards were given 90 rounds of live ammunition.  He was given no live ammunition, so evidently they knew he was suffering from mental illness.  He should have been given long-term care instead of just one evaluation.  They knew he was suffering from some kind of mental illness.  

	d.  His company commander had a family member killed by a drunk driver, which would explain why he had almost zero tolerance for alcohol.  The company commander didn't allow liquor in the barracks, but all other companies allowed it. They were only allowed one six-pack of beer.  He believes he was singled out because there were a couple of guys who had problems with alcohol and had been drunk on duty.  He was always singled out first thing in the morning and taken to the military police for a breath analysis every time he went out with a group of Soldiers.  The others were not tested.  

	e.  There should never be a statute of limitations when it comes to a rape victim.  It's like telling them, "We have this loophole so sorry for your luck."  Victims wait for years before they tell their story of trauma and some never tell at all.

	f.  At his 4 October 1988 legal consultation, he didn't have a clue about the proceedings and he didn't know or understand what a waiver was.  He had put in for compassionate relocation or transfer to another unit.  He told the person with whom he consulted that he thought his rights were being violated because of something that had happened to him.  A roll-away bed was placed by the charge of quarters (CQ) desk and he was confined to that bed for more than 20 days.  He couldn't go outside or into the television room; he could only walk to the bathroom 15 feet away.  He thought they were not allowed to do that; therefore, they shouldn't be allowed to throw him out of the Army because they violated his rights and his right to dignity.  

	g.  It is unfair to say that rehabilitation was impracticable or unlikely to succeed.  Mental illness of his severity is unlikely to be diagnosed with just one mental evaluation.  As he stated before, they knew of his mental illness.

	h.  There is a mistake on page two of the Record of Proceedings.  Paragraph 8 states he had 5 months and 19 days of creditable service.  It is actually 7 months in Germany and 3 months for basic combat training and advanced individual training at Fort Benning, GA (when he was in the Army National Guard (ARNG)).  

	i.  It's hard to explain how he feels, but he has always felt like he was a disgrace for being raped and also getting a GD.  He doesn't believe he was at fault.  

3.  He provides no additional evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130001839, on 27 August 2013.

2.  The applicant provides new argument that warrants consideration by the Board.  

3.  The available records show the applicant served on active duty at Fort Benning, GA, from 29 August to 26 November 1986 as a member of a Reserve component.  

4.  On 7 April 1988, he enlisted in the Regular Army.  

5.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on the following dates:

* 1 June 1988 for breaking curfew and being drunk on duty
* 5 July 1988 for being drunk on duty
* 22 August 1988 for breaking restriction and being absent without leave (AWOL) from 18 to 20 July 1988

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 26 September 1988, shows he underwent a mental status evaluation related to his pending discharge under the provisions of Army Regulation 653-200 (Personnel Separations - Enlisted Personnel), chapter 14.  The examining social worker found his mental status was within normal limits and psychiatrically cleared him for any administrative action deemed appropriate by his chain of command.  

7.  On 3 October 1988, his company commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, based on his lengthy record of misconduct.  The applicant's company commander stated the reason for the proposed action was the misconduct for which he had received NJP.  His commander advised him of his rights.  
8.  On 4 October 1988, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, of the rights available to him, and of the effect of a waiver of his rights.  

9.  After consulting with counsel, he indicated he would not submit statements in his own behalf, and he acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a GD were to be issued to him. 

10.  The appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed that the applicant be issued a General Discharge Certificate.  On 29 November 1988, he was discharged in accordance with the separation authority's decision.  He completed 5 months and 29 days of net active service this period with 2 months and 2 days of lost time.  He had 2 months and 28 days of total prior active service.  

11.  On 10 January 1991, the Army Discharge Review Board (ADRB) considered his request for an upgrade of his discharge.  The ADRB determined his discharge was proper and equitable and denied his request.

12.  His service medical records are not available for review, and the available records make no mention of any mental health diagnoses he may have received prior to his service.  The available records are void of documentation indicating he was raped.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  
The unit commander must insure that an appropriate mental status evaluation is obtained for Soldiers recommended for separation under this chapter.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a GD if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of the regulation.



	b.  Paragraph 3-7a provides that an HD 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 does not support his request for an upgrade of his GD to an HD.  

2.  He implies that having been raped should have been considered as a mitigating factor in his characterization of service.  Unfortunately, there is no evidence that he reported the incident to his chain of command or other authorities when it happened or that he raised the matter when given the opportunity to make a statement in response to the recommendation to discharge him.  After more than 30 years, with only his statement as evidence, the incident is insufficiently documented to be considered as a mitigating factor with regard to the characterization of his service.  

3.  He indicates he should have received long-term care for mental illness.  His claim that he had been diagnosed with a mental illness prior to entering military service may be true; however, it appears he had not reported that diagnosis.  There is no documentary evidence in the available records that contradicts the findings of the mental status evaluation he underwent in conjunction with his discharge processing.  

4.  Other than his own statements, there is no evidence that he was treated inequitably during his active service.  

5.  During his relatively brief period of active service during the period under review (5 months and 19 days), he received NJP three times.  This pattern of misconduct warranted the type of administrative discharge he received.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

6.  Considering all the facts of this case, his GD was appropriate.  The available evidence is an insufficient basis upon which to grant the 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 to amend the decision of the ABCMR set forth in Docket Number AR20130001839, dated 27 August 2013.



      _______ _  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)                                         AR20140000211



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ABCMR Record of Proceedings (cont)                                         AR20140000211



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