BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140018257 


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 that his discharge under other than honorable conditions be upgraded to at least a general discharge.

2.  The applicant states, in effect, that he was sexually assaulted by four men in Korea which had a traumatic effect on him and he still suffers from the physical and psychiatric effects to this day.  He goes on to state that his family would not accept him back because of the changes that the traumatic event had on him.  He also states that he struggled with his issues and received several Article 15s and eventually decided to leave the Army.  

3.  The applicant provides copies of Beck PRIDE Center contact notes.

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 23 September 1980 for a period of 3 years, training as a cannon crewman, and assignment to the 2nd Infantry Division – Korea.  He completed his one-station unit training at Fort Sill, Oklahoma and was transferred to Korea on 31 December 1980.

3.  He departed Korea on 15 December 1981 for assignment to Fort Polk, Louisiana.  On 12 March 1982, nonjudicial punishment (NJP) was imposed against him for being absent from his unit from 8 March to 9 March 1982.

4.  On 7 April and 8 April 1982, NJP was imposed against him for failure to go to his place of duty.

5.  On 4 May 1982, the applicant went absent without leave (AWOL) and he remained absent until he surrendered to civil authorities in Oceola, Arkansas on 2 July 1982 and was transferred to Fort Sill, where charges were preferred against him for his unauthorized absence.

6.  On 7 July 1982, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  Additionally, he was advised extensively of the procedures for applying to the Army Discharge Review Board and the ABCMR for an upgrade of his discharge.  He elected not to submit a statement in his own behalf and he declined a separation medical examination.

7.  On 16 July 1982, the appropriate authority (a major general) approved his request for discharge and directed that he be furnished a discharge under other than honorable conditions. 

8.  Accordingly, he was discharged on 29 July 1982 under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 8 months, and 8 days of total active service and had 59 days of lost time due to being AWOL.

9.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  A review of his official records, to include his medical records failed to show any evidence indicating that he was sexually assaulted or that he experienced a traumatic event.

11.  The Beck PRIDE Center contact notes provided by the applicant with his application are dated 25 April 2014.  These notes appear to be the applicant's account of an alleged sexual assault that occurred while he was on active duty in Korea.  It appears these notes were provided to assist with his filing a post-traumatic stress disorder (PTSD) claim.  He stated that he reported the incident to the military police and to his platoon sergeant, but nothing was ever done about it.  He also stated that he has had issues and has not been mentally stable ever since this traumatic incident.  The document does not show that a diagnosis was made.  

12.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions was considered appropriate at the time and still is.

13.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.  There were no violations of any of the applicant’s rights.
2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service to avoid a punitive discharge and a felony conviction on his records.

3.  The applicant’s contention that his discharge should be upgraded based on  PTSD has been noted and found to lack merit as he has failed to show through the evidence of record and the evidence submitted with his application any evidence of having been medically diagnosed with PTSD by competent medical authorities.

4.  Additionally, his contentions are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service and the seriousness of his misconduct.  His service simply does not rise to the level of a discharge under honorable conditions.

5.  Accordingly, there appears to be no basis to warrant an upgrade of his discharge.

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)                                         AR20140018257





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ABCMR Record of Proceedings (cont)                                         AR20140018257



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