IN THE CASE OF: BOARD DATE: 18 June 2009 DOCKET NUMBER: AR20090000849 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 discharge. 2. The applicant states that when he entered the Army he intended to make it a career. He was an exceptional Soldier who worked hard and received accelerated promotions; he was selected for schooling and a favorable assignment. However, in one instance while in the field he was raped by one of his sergeants. He informed his commander of this incident, but his commander did not believe him. He then began drinking heavily to ease the trauma which affected his performance. He was ultimately discharged with an under other than honorable conditions discharge. He also states that after his discharge, he suffered from poor personal relationships and has had flashbacks of this traumatic event for years. He believes that he deserves recognition for his honorable service in the form of an honorable discharge. 3. The applicant did not provide any additional documentary evidence in support of his request. 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's record shows he enlisted in the Regular Army for a period of 3 years on 30 May 1978. He completed basic combat and advanced individual training and was awarded military occupational specialty 64C (Motor Transport Operator). He was promoted through the ranks to specialist four (SP4)/E-4 on 1 September 1979. 3. The applicant’s record also shows he was awarded the Army Commendation Medal, the Drivers Badge, and the Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars. 4. The applicant’s record further reveals a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows: a. on 28 December 1979, for being absent without leave (AWOL) during the period on or about 26 December 1979 through on or about 29 December 1979. His punishment consisted of a reduction or private first class/E-3 (suspended for 90 days), a forfeiture of $125.00 pay ($75.00 suspended for 90 days), and 14 days of extra duty. However, on an unknown date between January and March 1980, the suspended portion of his punishment was vacated and the unexecuted portion was ordered executed; and b. on 13 May 1980, for twice failing to go at the prescribed time to his appointed place of duty on or about 7 May 1980 and on or about 11 May 1980. His punishment consisted of 14 days of extra duty, a forfeiture of $100.00 pay ($75.00 suspended for 60 days), a reduction to private/E-2 (suspended for 60 days), and 14 days of restriction. However, on 27 May 1980, the suspended portion of his punishment was vacated and the unexecuted portion was ordered executed. 5. On 14 November 1980, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his prior AWOL, nonjudicial punishment, delinquent checks, delinquent telephone bill, repeated occurrences of missing formation, dereliction, and failure to follow directions. The applicant was furnished with a copy of his bar to reenlistment; however, he elected not to submit a statement in his own behalf. 6. On 4 December 1980, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL during the period on or about 16 September 1980 through on or about 8 November 1980. His punishment consisted of 15 days in a correctional custody facility, a reduction or private/E-1 (suspended for 60 days), and a forfeiture of $1100.00 pay (suspended for 60 days). However, on 12 January 1981, the suspended portion of his punishment was vacated and the unexecuted portion was ordered executed. 7. On 16 January 1981, the applicant’s battalion commander approved the bar to reenlistment against the applicant. 8. On 18 March 1981, the applicant pleaded guilty at a summary court-martial to two specifications of being AWOL during the periods on or about 24 December 1980 through on or about 6 January 1981 and on or about 12 January 1981 through on or about 14 January 1981. The Court sentenced him to a forfeiture of $300.00 pay and 20 days of confinement at hard labor. The sentence was adjudged and approved on 18 March 1981. 9. The applicant’s records also reveal several subsequent instances of AWOL including the periods from 20 March 1981 to 2 April 1981, 8 June 1981 to 10 June 1981, 13 June 1981 to 17 June 1981, 22 June 1981 to 24 June 1981, 1 July 1981 to 8 October 1981, and 20 October 1981 to 8 November 1981. 10. Between 8 October 1981 and 19 October 1981, court-martial charges were preferred against the applicant for one or more specifications of being AWOL. A copy of the DA Form 458 (Charge Sheet) is not available for review with this case. 11. On 19 October 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations). 12. In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions. He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service." 13. On 19 October 1981, the applicant’s immediate commander recommended approval of the discharge with the issuance of an under other than honorable conditions discharge. 14. On 6 November 1981, the applicant’s intermediate commander also recommended approval with the issuance of an under other than honorable conditions discharge. 15. On 9 November 1981, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge. On 12 November 1981, the applicant was accordingly discharged. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued erroneously shows he was discharged under paragraph  14-33b of Army Regulation 635-200 by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities with a characterization of service of under other than honorable conditions. This form confirms he completed 2 years, 11 months, and 4 days of creditable active service and had 185 days of lost time. 16. There is no indication in the applicant’s records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations. 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 18. Chapter 14 of Army Regulation 635-200, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action is taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 19. Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 20. 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 contention that his discharge should be upgraded because he was raped by his sergeant was carefully considered; however, it is not sufficiently mitigating in granting him the requested relief. There is no evidence in the applicant’s records and the applicant did not provide any evidence that he addressed the issue of rape with his chain of command, military police, criminal investigation command, or any other agency. Additionally, there is no evidence that his extensive history of AWOL was due to rape. 2. The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 3. It is unclear why his DD Form 214 shows the authority for his discharge as chapter 14 instead of chapter 10 of Army Regulation 635-200. Nevertheless, the evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. The underlying reason for his discharge was his misconduct. 4. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit sufficient evidence that would satisfy this requirement. Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable or a general 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) AR20090000849 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090000849 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1