IN THE CASE OF:	  

		BOARD DATE:	  15 OCTOBER 2015

		DOCKET NUMBER:  AR20150003090 


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 undesirable discharge to honorable.

2.  The applicant states:

	a.  At the time of his discharge, the type of discharge wasn't discussed; he just signed the papers, and was told to go home.  He tried to tell the captain what happened to him, where, and when.  He was told he needed "to not be in the service."

	b.  He was approached by three men in uniform one evening while attending jump school at Fort Benning, GA.  He was beaten and raped by these individuals.

	c.  Being sexually assaulted and degraded in that way was terrible and has affected him in many ways.  He should have been given help and not scorned and told the service didn't need people like him.  He distanced himself from people (men), family, and friends.  It makes him feel ashamed, dirty, and very standoffish toward people.  It has ruined his relationships with his family, work, and children.

3.  The applicant provides no additional 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 29 June 1972 for a period of 3 years.  He completed basic and advanced individual training and he was awarded military occupational specialty 11B (light weapons infantryman).  He further completed basic airborne training at Fort Benning, GA, from 28 September 1972 to 25 October 1972.

3.  Between December 1972 and September 1973, nonjudical punishment was imposed against him on three occasions for:

* dereliction of duty
* absent without leave (AWOL) from 27 June 1973 to 4 July 1973
* failure to obey a lawful order 

4.  His records also show he was AWOL from:

* 5 November 1973 to 11 November 1973
* 20 December 1973 to 5 January 1974
* 21 January 1974 to 14 May 1974

5.  His records are void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 24 June 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and assigned separation program number 246 (discharge for the good of the service).  He completed 1 year, 6 months, and 7 days of total creditable active service and accrued 53 days of lost time.

6.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

REFERENCES:

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.  Chapter 10 of the version currently in effect is essentially unchanged.

	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.

DISCUSSION:

1.  The applicant's alleged history of military sexual trauma is acknowledged.  However, his record of service included three nonjudical punishments and 169 days of lost time.  There is no evidence indicating the traumatic event he experienced led to the misconduct that ultimately resulted in his administrative discharge.

2.  His records are void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)                                         AR20150003090



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ABCMR Record of Proceedings (cont)                                         AR20150003090



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