IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140012108 


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 general, under honorable conditions discharge.

2.  The applicant states that shortly after entering active duty he was sexually assaulted while serving at Fort Leonard Wood, MO.  He states that he didn't know how to deal with the traumatic experience.  After he was assigned to Fort Jackson, SC, he started having mental health issues that led to his discharge.  He adds he was not given a mental health evaluation prior to being discharged.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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 enlisted in the Regular Army on 19 February 1975 for a period of 2 years and he was assigned to Fort Leonard Wood, MO.  Upon completion of training, he was awarded military occupational specialty (MOS) 41C (Instrument Repairman).

3.  On 14 May 1975, the applicant accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 9 May 1975 to 12 May 1975.  In the statement that he submitted to the commander who imposed the NJP, he made no mention of a traumatic experience having contributed to his act of indiscipline.

4.  The applicant was tried by a special court-martial.

   a.  He was found guilty of:

* being AWOL from 8 June 1975 to 3 September 1975
* being absent from his place of duty on 5 October 1975
* being AWOL from 24 October 1975 to 29 October 1975

	b.  He was sentenced to be confined at hard labor for two months.

   c.  On 18 November 1975, the Special Court-Martial Convening Authority approved the sentence and ordered it duly executed.

5.  Fort Jackson (FJ) Form 46 (Evaluation for Discharge for Enlistees Under Provisions of [UP] Expeditious Discharge Program [EDP]) shows the first sergeant and the company commander of Company A, 14th Battalion,
4th Advanced Individual Training Brigade (Combat Support), Fort Jackson, SC, interviewed the applicant (on 23 February and 24 February 1976, respectively) concerning the severe situation and personal hardship he had placed himself, his wife, and his five children in as a result of his three incidents of AWOL.  The commander noted, "[a]fter a lengthy conversation, I feel that [the applicant] has brought this hardship upon himself."

6.  On 3 March 1976, the commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (EDP).

   a.  The reasons for his proposed action were the applicant's severe personal problems brought on by his three incidents of AWOL.

   b.  The commander advised the applicant of his rights, the separation procedures involved, and that he was recommending that he be furnished a General Discharge Certificate.
7.  The applicant acknowledged notification of the proposed discharge and that he had been provided the opportunity to consult with a Judge Advocate General’s Corps officer concerning the basis for the contemplated separation action.

	a.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

   b.  He waived his right to submit a statement in his own behalf and he voluntarily accepted discharge from the U.S. Army.

	c.  The applicant placed his signature on the document.

8.  The commander forwarded the proposed separation action to the separation authority.

9.  The separation authority approved the recommended separation action and directed the applicant be issued a General Discharge Certificate.

10.  The applicant's DD Form 214 shows he was discharged on 11 March 1976 UP AR 635-200, paragraph 5-37, and his service was characterized as under honorable conditions.  He completed 7 months and 22 days of active service and he had 151 days of time lost.

11.  A review of the applicant's military service records failed to reveal a copy of a report of mental status evaluation or separation medical examination.  This review also failed to reveal any evidence that the applicant was involved in an incident of sexual assault during the period of service under review.  Additionally, the applicant has not provided any documentation from the VA or medical authority indicating he has service-connected mental issues.

12.  A further review of his military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

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

   a.  Chapter 5 (Separation for Convenience of the Government), paragraph
5-37, in effect at the time, provides for the separation of Soldiers under the EDP who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Members separated under the EDP could be awarded a character of service of honorable or general, under honorable conditions, as appropriate.

   b.  Chapter 3, 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.

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that 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.  The applicant contends his general, under honorable conditions discharge should be upgraded to a fully honorable discharge because he was sexually assaulted shortly after entering active duty and he was not given a mental health evaluation prior to being discharged.

2.  The evidence of record shows the applicant was interviewed by both his first sergeant and company commander prior to initiation of the administrative separation action.  At that time, the applicant's personal situation was discussed. There is no evidence of record that shows he informed his chain of command that his personal problems were related to a traumatic event.  Moreover, he declined to submit a statement in his own behalf during his separation process.  Thus, there is no evidence of record that supports the applicant's contention that he was sexually assaulted during the period of service under review.

3.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the separation process, the type of discharge, and the characterization of service directed is presumed to have been, and still is, appropriate.


4.  The evidence of record shows the applicant had two incidents of AWOL within seven months of entering active duty that accounted for more than three months of time lost.  As a result, he was confined for two months.  He had a total of
151 days (i.e., more than five months) of time lost and he completed less than eight months of his 2-year enlistment obligation.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

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 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)                                         AR20140012108



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ABCMR Record of Proceedings (cont)                                         AR20140012108



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