IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140005823 


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 earlier request for upgrade of his discharge.

2.  The applicant states he, in effect:

* disagrees and feels victimized by the denial of his request
* wishes to be told how to appeal the decision, else he will file a lawsuit
* does not have photographs showing the abuse he suffered, he was too busy getting abused to be able to take pictures
* despite the board's reference to his running away from home when younger, he maintains he had no significant instances of bad behavior
* believes the nonjudicial punishment (NJP) he received prior to going absent without leave (AWOL) was an effort to show him he was under the control of those who were abusing him
* was granted leave despite having received NJP; therefore, he must not have been a bad Soldier
* counters the Board's contention that being 19 years old did not mitigate his actions by stating other young Soldiers did not suffer the same sexual abuse he did
* maintains he went AWOL to flee his abusers
* states he has seen a mental health counselor while incarcerated and her diagnosis is anti-social personality disorder and post-traumatic stress disorder (PTSD) brought on by trauma experienced while in the Army
* states the Board made an administrative error as to the date of his discharge because he was incarcerated on that date
* was fine until he was assigned to the 123rd Signal Battalion, where something happened to cause a change in his behavior
* ran away and began committing felonies; mental health professionals cite the catalyst for this behavior as a traumatic event while in Germany
* based upon what he experienced, he should be eligible for either an upgrade or a medical discharge
* the Board is making its decision without the benefit of a military mental health evaluation, consideration for the victim, or any independent investigation of the facts he describes
* suggests an evaluation be immediately ordered of the Wyoming prison at which he is housed
* based upon that evaluation, the Board should reconsider its prior decision
* should the Board not change his discharge, he will commence legal proceedings and release copies of his correspondence, court records, and military records to the media
* requests under the Freedom of Information Act all of his military personnel records in the possession of the Department of Defense, along with the names of those commanders who were part of his elimination from the service
* failure to comply within 60 days would result in his filing civil and criminal proceedings

3.  The applicant provides a civil criminal offense document, 2 self-authored letters, and the first page of a civil court action.

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 AR20130009231 on 28 January 2014.

2.  The applicant provided new evidence:

* a document titled Post Sentence Investigation - [Applicant's Name], on which is enumerated his adult court history
* the first page of a lawsuit showing a filing in the United States District Court for the 10th District with the applicant as the plaintiff and numerous parties identified as defendants
* two self-authored letters; one addressed to Army Review Boards Agency (ARBA) and the other to the Inspector General - U.S. Army, Judge Advocate General (JAG), and the Secretary of Defense

3.  He enlisted in the Regular Army on 31 July 1979 when he was 17 years and 
1 month of age.  Following Basic Combat and Advanced Individual Training, he was awarded the military occupational specialty of 31M (Multichannel Communications Equipment Operator).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

4.  On 12 January 1980, he was assigned to Company B, 123rd Signal Battalion, Germany.

5.  On 4 March 1981, he received NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty.

6.  On 5 September 1981, he was reported AWOL from his assigned unit.

7.  His records contain a DA Form 4384 (Commander's Report of Inquiry/Unauthorized Absence), dated 17 September 1981, wherein his immediate commander stated the applicant was on leave and was reported AWOL when he failed to return from leave.  In a second undated DA Form 
4384, his commander stated a letter received from the applicant's mother, dated 28 September 1981, stated he had been writing bad checks, wrecked and abandoned a rental car, and was spending money on drinks and drugs.

8.  On 4 October 1981, he was dropped from the rolls (DFR) as a deserter.

9.  On 13 January 1982, he was apprehended by civilian authorities and returned to military control.  He was assigned to the Personnel Confinement Facility (PCF), Fort Ord, CA.

10.  On 18 January 1982, he was reported as AWOL from his unit and DFR as a deserter.  On 6 October 1982, he was apprehended by civilian authorities and returned to military control at the PCF, Fort Ord, CA.  However, on 20 October 1982, he was arrested by civilian authorities and confined to the Monterey County Jail, Monterey, CA.

11.  On an unknown date, his unit was notified he had been convicted of two counts of grand theft auto on 9 December 1981, one count of grand theft auto on 15 April 1982, and he was sentenced to 1 year and 1 month in the Monterey County Jail with 5 years probation.

12.  On 15 April 1983, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - civilian convictions due to his conviction and sentence for three counts of grand theft auto.

13.  On 15 April 1983, the applicant acknowledged receipt of the commander's intent to initiate separation action against him and he acknowledged he was advised of the basis for the contemplated separation action, the type of discharge he could receive, and of the procedures and rights available to him.  He declined to seek legal counsel, waived consideration of his separation action by a board of officers, and declined to submit a statement in his own behalf.

14.  His immediate commander subsequently submitted a request for the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14 for misconduct - civilian conviction.  

15.  On 28 April 1983, the separation authority approved the request for discharge and directed the issuance of an Under Other Than Honorable Discharge Certificate.

16.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 16 May 1983, under the provisions of Army Regulation 635-200, chapter 14, for misconduct - civilian conviction, with an under other than honorable conditions characterization of service.  He completed 2 years, 1 month, and 21 days of net active service with 261 days of lost time due to being AWOL and/or confinement.  He was unavailable to sign his DD Form 214.

17.  The applicant provides:

	a.  a document titled Post Sentence Investigation - [Applicant's Name], on which is enumerated his adult court history.  Shown are three dates of offense, the applicant's age, the location, the offense and type, the court and file number, a brief description of the offense and the disposition and date.

	b.  the first page of a lawsuit showing a filing in the United States District Court for the 10th District with the applicant as the plaintiff and numerous parties identified as defendants.

	c.  a self-authored letter, dated 12 April 2014, addressed to ARBA, wherein he states, in effect:

* he acknowledged receiving ARBA's notice of receipt of his request for reconsideration
* he was not asking for reconsideration; rather, he wanted the Army to do what is right
* he did not intend to wait another 12 months to have someone look at his case; he gave ARBA 60 days to provide all documents used in deciding his case
* ARBA failed to meet the 60 day deadline, so he has written JAG/Appeals Management Center, the Inspector General, and the Secretary of Defense (copy attached)
* he has enclosed a copy of his lawsuit.  He does not wish to file it but will, along with addressing his case with the media, if he does not receive satisfaction
* the delays he is experiencing are examples of the kind of harassment experienced by victims of sexual abuse
* he is tired and frustrated, apologizes for venting, but he is not going away
* he has a mental health condition that can be traced directly to the abuse he suffered at the hands of his superiors in the military
* the military took short cuts during his discharge process and has tried to cover it up
* he has proof he was not there when the military says he was, and wants to see his signature on his discharge documents
* ARBA has until 15 May 2014 to provide the documents he requested, else he will file his lawsuit and press criminal charges in Federal court

	d.  a self-authored letter, dated 10 April 2014, addressed to the Inspector General - U.S. Army, The JAG, and the Secretary of Defense, which essentially restates the arguments he included in his application to the ABCMR.

18.  His records are void of and he did not provide any medical documentation showing he was diagnosed with PTSD either recently or while he was serving on active duty.

19.  His records are void of evidence indicating any instances of sexual abuse or assault.

20.  Army Regulation 635-200, currently in effect, 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 included commission of a serious offense.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	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.

	c.  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.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides policy and procedures under which this Board operates.  Paragraph 2-9 (Burden of Proof) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Sexual assault and abuse are contemptible and insidious offenses, and the trauma sustained as a result can be difficult to substantiate.  Nonetheless, for action to be taken, evidence must be provided, of which the preponderance must support those contentions made by the applicant.

2.  The applicant's contention his misconduct was due to PTSD resulting from sexual abuse during his assignment to the 123rd Signal Battalion is not sufficiently supported by evidence.  His record is void of any evidence of abuse as well as of efforts he may have made to seek help or treatment from either military or civilian mental health professionals at the time of his civilian conviction and subsequent discharge.  Further, the applicant did not provide any current medical documentation from civilian mental health professionals to support his claim.

3.  It is recognized the applicant was not under military control when he was discharged.  He was unavailable to sign his DD Form 214.  However, that does not invalidate the date of his discharge.

4.  In view of the foregoing, there is insufficient evident to support the relief requested.



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 AR20130009231, dated 28 January 2014.




      _______ _   _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)                                         AR20140005823





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ABCMR Record of Proceedings (cont)                                         AR20140005823



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