IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140017173 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect:

* while assigned in a Field Artillery unit at Fort Riley, KS he was sexually assaulted by two other members of his unit
* these two members also forced him to take cocaine at the time of the assault
* he was threatened with physical harm if he reported what had happened
* as a result of taking the cocaine, he became addicted and, subsequently, came up positive on a unit urinalysis test
* when he came up positive, he was given the choice of either facing court-martial or accepting an administrative discharge; he chose the discharge
* this incident has been very hard for him to revisit; he has not told anyone, including his family, about what occurred
* he is no longer comfortable around a lot of people, his marriage has faltered, and he has not been able to maintain stable employment
* with his contention of being the victim of sexual assault, the applicant implies the assault provides sufficient mitigation to allow the Board to approve an upgrade of his discharge

3.  The applicant provides no additional documentary 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 enlisted in the Regular Army on 20 November 1986.  After completing One Station Unit Training, he was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade held was specialist four/E-4.

3.  On 16 November 1987, he received a general officer letter of reprimand for driving under the influence (DUI) of alcohol.  This letter of reprimand was placed in his official military personnel file (OMPF).  

4.  DA Form 4126-R (Bar to Reenlistment Certificate), dated 7 October 1988, shows the applicant was barred from reenlistment.  The bases shown were:

* nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), dated 30 October 1987, for violation of Article 111 (Drunken or Reckless Driving)
* dishonored check to the Army and Air Force Exchange Service (AAFES), on 16 March 1988, in the amount of $12.00
* applicant was cited as being on the Military Police (MP) blotter for speeding and driving while on revoked installation driving privileges for a prior DUI

5.  A DA Form 5180-R (Urinalysis Custody and Report Record), dated 
18 October 1988, shows the applicant as testing positive for cocaine.

6.  Two DA Forms 4187 (Personnel Action) show the applicant's duty status as follows:

* effective 2000 hours, 10 November 1988, duty status change from present for duty to confined in civilian authorities; Section IV (Remarks) states the applicant was confined after being arrested for speeding and driving on a suspended license
* effective 1430 hours, 23 November 1988, duty status change from confined in civilian authorities to present for duty

7.  On 10 January 1989, the applicant accepted NJP under the provisions of Article 15, UCMJ, for one specification of wrongful use of cocaine.  Part of the punishment was suspended and this suspension was vacated on 23 February 1989 as a result of the applicant failing to report to his appointed place of duty on 22 February 1989.

8.  The applicant’s discharge packet is not available for review.  There is, however, a DD Form 214 (Certificate of Release or Discharge from Active Duty).  His DD Form 214 shows:

	a.  He was discharged on 24 February 1989, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b (a pattern of misconduct).

	b.  The characterization of service is under other than honorable conditions.  The narrative reason for separation is misconduct - drug abuse.

	c.  He completed a total of 2 years, 2 months, and 22 days of net active creditable service this period, with 13 days of lost time.

	d.  He was awarded or authorized:

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Hand Grenade Bar

9.  On 3 April 1996, the applicant applied to the Army Discharge Review Board (ADRB).  His contentions included:

* he excelled scholastically in high school and was a State Wrestling Champion
* he was awarded a scholarship to Omaha University; he joined the Army to improve his financial situation
* while at Fort Riley he came under the influence of the wrong people
* his response to that influence along with his immaturity led to his discharge
* he admitted his discharge was caused by his actions, but maintained he was then married and has two children to support
* no mention was made of being the victim of sexual assault

10.  On 12 December 1997, the applicant was notified the ADRB had considered his request for upgrade of his discharge and denied that request.

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

	a.  Chapter 14 (Separation for Misconduct), paragraph 14-12b, in effect at the time, states members are subject to separation under this provision when they have a pattern of misconduct involving:

* acts of discreditable involvement with civil or military authorities
* conduct which is prejudicial to good order and discipline

	b.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests upgrade of his under other than honorable discharge.  He contends he was the victim of sexual assault and, as part of that assault, he was forced to take cocaine.  He became addicted to cocaine as a result of this and his addiction led to his discharge.  With his disclosure of the assault, the applicant implies there are, therefore, sufficient mitigating circumstances to offset the misconduct which led to his discharge.  In making his contention, he offers no independently verifiable evidence.  Additionally, he has not submitted any substantiation from a behavioral health specialist qualified to evaluate cases involving sexual assault.

2.  His OMPF shows the applicant had a pattern of misconduct:

* he received NJP on two occasions
* he received a general officer letter of reprimand for driving under the influence of alcohol
* he rendered a dishonored check to AAFES
* there were MP blotter entries showing he drove a vehicle while having had his installation driving privileges suspended.
* he was confined by civilian authorities for speeding and driving on a revoked driver's license

3.  The applicant's discharge packet is not available for review.  Nonetheless, there is no evidence submitted by the applicant or from any other source which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time.  Regularity is presumed and that actions taken by the Army are administratively correct.  All evidence indicates the requirements of law and regulations were and the rights of the applicant were fully protected throughout the separation process.  Absent any evidence to the contrary, regularity must be presumed.

4.  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.

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

6.  Even with an under other than honorable conditions discharge, resources are available for the applicant to obtain help.  The Department of Veterans Affairs (VA) website (http://www.mentalhealth.va.gov/msthome.asp) offers resources to help victims of military sexual trauma.  Additionally, Veterans Service Organizations (VSO) provides assistance and the VA website includes a VSO directory at http://www.va.gov/vso/VSO-Directory_2013-2014.pdf. 

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)                                         AR20140017173





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ABCMR Record of Proceedings (cont)                                         AR20140017173



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