IN THE CASE OF:  	  

		BOARD DATE:  18 September 2014  	  

		DOCKET NUMBER:  AR20140003290 


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, through his Member of Congress, an upgrade of his under other than honorable conditions discharge to honorable. 

2.  The applicant states:

* his desertion and ultimate discharge from the Army was due to psychological and physical trauma
* he sustained trauma during and after being sexually assaulted by another Soldier and he was subsequently harassed by others familiar with the incident
* his roommate in Germany over-powered and beat him and he then sodomized him
* he was young at the time and he did not know what to do; the Army certainly did not help him
* he was then ridiculed and harassed and he was on the verge of suicide; his immediate chain of command was passive
* he was deliberately put into situations that further compromised his well-being, such as when a person who pretended to be an investigator
* the Soldier who traumatized him was ultimately convicted and placed in jail in Mannheim prison
* he was allowed to go on leave which alleviated some of his suicidal thoughts but he did not return
* he contacted officers at Fort Hamilton, NY, including the chaplain, but he was refused assistance
* rather than harming himself, he decided to desert; he felt since the Army had turned its back on him, this was his only choice
* after several years and once the mental injury had healed, he decided to turn himself in and he did so at Fort Dix
* he was presented with three choices: court-martial with possible jail time, court-martial with possible honorable discharge, or accept a general discharge
* he was young and inexperienced; he accepted the advice of his military attorney and took the chapter 10
* prior to his tragedy, he had dreams of making the Army a career 

3.  The applicant provides:

* Congressional correspondence
* Enlistment contract
* DD Form 458 (Charge Sheet)
* DA Form 2-1 (Personnel Qualification Record)
* Immunization Record
* Standard Forms (SF) 600 (Chronological Records of Medical Care)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 was born in October 1960 and enlisted in the Regular Army at 17 years and 7 months of age on 2 May 1978.  He was trained in and held military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).  

3.  He attended the Basic Airborne Course at Fort Benning, GA; however, he was dropped from training due to not being able to adapt to airborne training and lack of motivation (self-imposed withdrawal). 
4.  He served in Germany from 27 December 1978 to on or about 30 September 1979.  He was assigned to the 3rd Squadron, 2nd Armored Cavalry Regiment. He attained the rank/grade of private first class/E-3

5.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and Army Service Ribbon. 

6.  On 2 September 1979, he failed to return from ordinary leave.  As such, on that date his unit reported him in an absent without leave (AWOL) status, and on 30 October 1979, he was dropped from the rolls as a deserter.  He ultimately returned to military control on or about 2 July 1985.  He was assigned to the Personnel Control Facility, Fort Dix, NJ, for administrative processing.

7.  On 3 July 1985, court-martial charges were preferred against him for one specification of being AWOL from 1 October 1979 to 2 July 1985.  

8.  On 3 July 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation or to perform further military service
* he elected to submit a statement on his own behalf 

9.  His records contain a Personnel Control Facility Interview Sheet that shows: 

	a.  Why did you go AWOL?  He stated that he went AWOL because he was assaulted and abused drastically by another Soldier who was court-martialed and sentenced to prison.  This incident caused him severe mental anguish and traumatic behavior.  He was also threatened by the Soldier's friends that they would harm him if he returned.  He approached personnel, including the chaplain at Fort Hamilton, NY, and asked to at least get a temporary duty status there but no one would help him.  Every one told him he needed to return to Germany.  

	b.  Comments: Interviewer talked to the service member.  The service member stated he had no medical problems.  He did not testify at the court-martial.  He was threatened after the court-martial of Specialist Four Wh----- and not to return to his unit in Germany.  His unit gave him protection up to the end of the court-martial.  After he was threatened, he went on leave and did not return.  He did not ask for a transfer before going on leave.  He went to Fort Hamilton one week after he was due back off leave to Germany.     

10.  His records also contain a Personnel Control Facility Information Sheet that shows he had been counseled regarding the waiver of a physical and understood by waiving the physical, he might be ineligible for any later medical claim against the government.  He circled the entry "I do not request a physical" and he also circled the entry "I do not want to stay in the service." 

11.  On 22 and 25 July 1985, his immediate and intermediate commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.  

12.  On 26 August 1985, consistent with the chain of command recommendations, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. 
On 17 September 1985, he was discharged accordingly.

13.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 1 year, 7 months, and 15 days of active service and he had lost time from 1 October 1979 to 1 July 1985 (2,100 days). 

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations 

15.  He provides his immunization record and multiple other chronological records of medical care that show routine maladies (foot pain, stomach pain, and arm pain).  One particular SF 600, dated 2 March 1979 shows the entry: "assaulted last night by roommate; sexually molested."  "About 11:45 pm, patient states he was assaulted and sexually molested in his room by his roommate.  He states he was forced to sexually accommodate his roommate via oral sex."  "He states he was choked." 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

	b.  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.

17.  Secretary of the Army memorandum, Subject:  Army Directive 2011-19 (Expedited Transfer or Reassignment Procedures for Victims of Sexual Assault), dated 3 October 2011, states, in part, it is Army policy that there is a presumption in favor of transferring or reassigning a sexual assault victim, at his/her request, following that victim’s credible report of sexual assault.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All 

requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  The applicant's records document his sexual assault and his subsequent trauma.  Other documents in his file also mention he was threatened.  As he was 17 years and 6 months at the time of his enlistment and 18 years of age at the sexual assault, it is reasonable to presume his young age, lack of experience, and perception of an unsafe work environment led him to the wrong path - AWOL.  

3.  Although his unit promised him protection, it did so only until the end of the court-martial of his abuse.  Unfortunately, the unit did not take into consideration the potential for psychological, mental, and emotional damage this experience could have caused him.  The chain of command could have offered him the option of a compassionate reassignment, a transfer to another unit, and/or curtailment of his tour.  It does not appear any of this had happened. 

4.  Under current standards, such a transfer for the applicant’s safety and well-being would have been almost mandatory.

5.  Nevertheless, there would have been other legitimate avenues to address any issues or problems and resolve them had the applicant known of them or elected to choose those options.  The evidence shows he consulted with a chaplain at Fort Hamilton only one week after his leave had expired.  The evidence of record clearly shows he chose to be AWOL and the court-martial charges were related to AWOL.  He was advised of his rights and knew the implications of his choice.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.

6.  While his extensive history of AWOL certainly proves the quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel, and while there is no error in the processing of his discharge, as a matter of equity only, and because of the verifiable trauma he suffered, his characterization of service should be changed to under honorable conditions (general).  However, this action does not change or negate the narrative reason for his separation.  

7.  Therefore, he is entitled to the issuance of a new DD Form 214 that reflects his characterization of service as under honorable conditions (general), with no change to the separation code or narrative reason for separation.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his DD Form 214 for the period ending 17 September 1985 and issuing him a new DD Form 214 to show he was discharged with an under honorable conditions (general) characterization of service.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an honorable characterization of service. 



      _______ _   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)                                         AR20140003290





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003290



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1