IN THE CASE OF:    

		BOARD DATE:  23 June 2015	  

		DOCKET NUMBER:  AR20140019522 


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 his undesirable discharge be upgraded.

2.  The applicant states his wife was sexually assaulted when he was participating in field training exercises and his captain refused him leave so he went absent without leave (AWOL).  He was trying to neutralize an untenable situation.  His discharge restricts him from employment opportunities and benefits.

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States), dated 9 June 1975
* DD Form 214 (Report of Separation from Active Duty) with an effective date of 18 October 1976 

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.  On 9 June 1975, he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program.  On 16 June 1975, he enlisted in the Regular Army for 4 years.

3.  On 21 November 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent from his appointed place of duty.

4.  His DA Form 2-1 (Personnel Qualification Record) shows the following assignments at Fort Polk, LA:

* 10 October 1975 - assigned to the 4th Squadron, 12th Cavalry
* 9 December 1975 - assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 40th Armor as an infantryman
* 9 January 1976 - assigned to Combat Support Company (CSC), 
1st Battalion, 40th Armor as a personnel carrier driver
* 1 March 1976 - assigned to Company C, 1st Battalion, 40th Armor

5.  On 7 April 1976, he went AWOL and he was dropped from the rolls on 6 May 1976.

6.  On a DA Form 4384-R (Commander's Report of Inquiry/Unauthorized Absence) his commanding officer indicated marital strife as a possible contributing factor causing the applicant's AWOL.  He stated the applicant was having family problems with his wife.  "Expressed extreme anger and did on several occasions assault her."

7.  On 3 September 1976, he was apprehended by the Federal Bureau of Investigation (FBI) in West Columbia, TX and returned to military control.

8.  On 23 September 1976, court-martial charges were preferred against the applicant for being AWOL from on or about 7 April 1976 to on or about 
3 September 1976.

9.  On 24 September 1976, he received a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  
10.  On 24 September 1976, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of 
chapter 10 of Army Regulation 635-200 (Enlisted Personnel Separations).  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf 

11.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

12.  The applicant submitted a statement, dated 24 September 1976.  He stated:

	a.  After advanced individual training he was assigned to the 4th Squadron, 12th Cavalry at Fort Polk and started on the job training for military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist).

	b.  After receiving NJP for being late for duty twice he was transferred to HHC, 1st Battalion, 40th Armor for a 3-week tanker course.

	c.  While in the last week of the training, his wife was raped (16 December 1975) while he was in a night-firing phase.  When he complained he was transferred to CSC with no other action.  

	d.  After 2 months of setting up CSC barracks he was again transferred to Company C for about the same purpose.  On 6 April 1976, he received information that his great uncle had died and he was denied leave because he was too distant of a relative.

	e.  The hardships caused by his being in the Army had cost him separation from his family because of the fear and threat of reoccurring rape.

13.  On 8 October 1976, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest grade.

14.  On 18 October 1976, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 and issued an Undesirable Discharge Certificate.  He completed 10 months and 7 days of net active service that was characterized as under other than honorable conditions.  He had 149 days of time lost.

15.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an Undesirable Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention in his application that his wife was sexually assaulted in December 1975 is consistent with the statement he gave with his request for discharge on 24 September 1976.  However, there is no evidence that he sought assistance from his chain of command concerning a possible hardship discharge or assistance for his wife.  It is noted that although his wife was assaulted in December 1975, he did not go AWOL until 7 April 1976 upon notification of the death of a distant relative.

2.  Based on his extended period of AWOL, his service was unsatisfactory.  The fact that he was apprehended by the FBI raises doubt as to his intent to return to military jurisdiction of his own volition.

3.  The applicant's discharge processing was conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time.

4.  There is insufficient substantive evidence to upgrade his discharge to a general discharge under honorable conditions or an honorable 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)                                         AR20140019522



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ABCMR Record of Proceedings (cont)                                         AR20140019522



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