IN THE CASE OF:	

		BOARD DATE:	  28 October 2008

		DOCKET NUMBER:  AR20080010671 


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, in effect, that the conduct and efficiency ratings of "good" on his DA Form 20 (Enlisted Qualification Record) be corrected to read "excellent."

2.  The applicant states, in effect, that there was no reason for "whiting out" the "excellent" ratings.  He suspects the personnel clerk grabbed the wrong record.  The regulation required that when a reason existed for giving a Soldier a "good" rating rather than an "excellent rating, the Soldier must have been notified of such reasons and contemplation of such action.  He received no such notification, and no such reason existed.  He knew the personnel clerks there (he was an E-5 clerk with Headquarters, U.S. Army Europe) and feels sure that if any such action was being contemplated they would have told him.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of his DA Form 20.

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 5 January 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 71B (Clerk Typist).

3.  After having previously been assigned to Vietnam and Fort Leonard Wood, Missouri, the applicant was assigned to Company A, U.S. Army Europe and Seventh Army Special Troops Group, Germany, on or about 2 February 1970.

4.  On 23 November 1970, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for violating a lawful regulation by having in his possession alcoholic beverages, to wit:  six cans of beer in Building 115.

5.  The applicant departed Germany on 27 December 1970.  His DA Form 20 shows that his conduct and efficiency had been rated as "excellent" during his previous assignments, but his conduct and efficiency during his assignment in Germany were rated as "good."  There is no indication on the original DA Form 20 filed in his records that any correction fluid had been used on the form.

6.  The applicant was honorably released from active duty on 28 December 1970 in the rank and grade of specialist five, E-5, after completing 2 years, 11 months, and 24 days of creditable active service with no lost time.

7.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, provided for the preparation and maintenance of the DA Form 20.  In pertinent part, it stated that conduct and efficiency ratings would be entered in item 38 (Record of Assignments) to reflect all ratings rendered in compliance with section II, chapter 5.  When ratings which would have disqualified the Soldier for an honorable discharge were entered and the records contained no information, such as courts-martial or absences without leave (that may have explained the ratings), a brief explanation of the reason for the disqualifying rating would be entered in item 42 (Remarks).

8.  Army Regulation 600-200, chapter 5 (Personnel Evaluation and Rating Systems) of the version in effect at the time, section II (Conduct and Efficiency Ratings), prescribed policies and procedures governing enlisted conduct and efficiency ratings.  Paragraph 5-29 stated that when, in the opinion of the rating officer, the conduct and/or efficiency rating should have been shown as one that would have disqualified the individual for an honorable discharge and the Military Personnel Records Jacket contained no information to substantiate the entry, a brief explanation of the reason for the disqualifying rating would have been given in accordance with chapter 9.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.

2.  There is no evidence on the original DA Form 20 in the applicant's records that indicates previous "excellent" ratings had been deleted and "good" ratings inserted.

3.  The governing regulation did not require that the Soldier be notified of the reasons behind and the contemplation of giving the Soldier a "good" rating rather than an "excellent" rating.  The regulation only required that when ratings which would have disqualified the Soldier for an honorable discharge were entered and the records contained no information that would have explained the ratings, then a brief explanation of the reason for the disqualifying rating would have been entered in item 42.  There was no requirement to notify the Soldier.

4.  In addition, "good" conduct and efficiency ratings did not disqualify the applicant from receiving an honorable characterization of service upon his separation.

5.  The applicant's previous "excellent" conduct and efficiency ratings are noted.  However, it is also noted that he accepted nonjudicial punishment during the assignment under consideration.  In the absence of evidence to the contrary, it is presumed that his commander rated his conduct and efficiency in accordance with his quality of service during that assignment.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____XX____  ___XX_____  ____XX____  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.



      ________XXXX_________________
                 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)                                         AR20080010671



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ABCMR Record of Proceedings (cont)                                         AR20080010671



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