IN THE CASE OF: BOARD DATE: 31 August 2010 DOCKET NUMBER: AR20100009326 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 general discharge upgraded to a fully honorable discharge by reason of physical disability. 2. The applicant states that he should have been honorably discharged for medical reasons because he has mental problems that resulted from being gang raped in basic training at Fort Benning, Georgia. He goes on to state that he has been diagnosed as having post-traumatic stress disorder (PTSD) since his discharge. 3. The applicant provides a six-page letter explaining his circumstances and a copy of his medical progress notes from a Department of Veterans Affairs (VA) staff psychiatrist. 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. He was born on 24 December 1948 and enlisted in the Regular Army with parental consent on 14 January 1966 for a period of 3 years and training as a communications center specialist. 3. He completed his basic training at Fort Benning, Georgia and his advanced individual training at Fort Gordon, Georgia before being transferred to Germany on 27 June 1966 for assignment to a signal company. He was advanced to the pay grade of E-3 on 20 August 1966. 4. On 18 November 1966, the applicant underwent a psychiatric evaluation and was diagnosed with an immature personality. The examining psychiatrist opined that he showed general immaturity and that he was not motivated to continue in the military. He recommended that action be taken to eliminate him from the service. 5. On 28 November 1966, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-212 for unsuitability. He cited as the basis for his recommendation the applicant’s failure to respond to numerous counseling sessions, his behavioral pattern manifested by habitual shirking; his inability to conform for the good of the team, his unsatisfactory performance and constant subjection of his fellow Soldiers to his personal fantasies. After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf. 6. The appropriate authority approved the recommendation for discharge on 20 December 1966 and directed that he be furnished a General Discharge Certificate. 7. Accordingly, he was discharged under honorable conditions on 5 January 1967 under the provisions of Army Regulation 635-212 for unsuitability due to apathy, defective attitudes and inability to expend effort constructively. He had served 11 months and 22 days of total active service. 8. There is no indication 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. 9. There is no indication in the applicant’s records regarding a rape incident during his initial entry training and there is no indication that he was found unfit for separation at the time of his discharge. 10. The applicant’s records contain the following requests for information authorized by the applicant: * A September 1974 request from the Florida Parole and Probation Commission in Orlando, Florida in connection with the applicant’s guilty plea to the offense of Uttering a Forgery and a presentence investigation * A February 1975 request from the Florida Parole and Probation Commission in Sebring, Florida in connection with a presentence investigation * A 19 October 2000 request from the United States District Court Federal Probation System in Harrisburg, Pennsylvania 11. The medical progress notes from the VA which are provided by the applicant indicate that the applicant suffers from Post-Traumatic Stress Disorder (PTSD) due to sexual assault in the military. 12. Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability. It stated, in pertinent part, that individuals would be separated for unsuitability due to inaptitude, character and behavior disorders, apathy, alcoholism or enuresis and that the individual would be furnished an honorable or general discharge. 13. Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to have jeopardized his rights. 2. Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and his overall record of service. 3. The applicant's contentions were considered. However, his service does not rise to the level of honorable service when compared to his undistinguished record of service during such a short period. The applicant was given the opportunity to serve successfully and end his service honorably and apparently he chose not to do so. Accordingly, there appears no basis to warrant an upgrade of his discharge. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the applicant’s record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20100009326 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)