BOARD DATE: 1 July 2010
DOCKET NUMBER: AR20090021992
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 his discharge be upgraded.
2. The applicant states he was physically raped three times while he was stationed at Fort Carson, Colorado. He states he was also physically assaulted. He continues that he did not want this to happen to him; he wanted to serve his country. He did not want to tell his family.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 military records show he enlisted in the Regular Army on 17 June 1971, was awarded the military occupational specialty of storage specialist, and was promoted to pay grade E-2.
3. On 14 November 1972, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 12 June 1972 to 11 November 1972.
4. On 28 November 1972, the applicant submitted a request for discharge for the good of the service. In that request he acknowledged that he had consulted with counsel who advised him of his rights under the Uniform Code of Military Justice (in court-martial proceedings) and that his guilt would have to be proven beyond a reasonable doubt at a court-martial.
5. The applicant's request was approved by the appropriate authority. Accordingly, on 11 January 1973 the applicant was given an undesirable discharge.
6. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. However, at that time an Undesirable Discharge Certificate was issued.
7. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.
8. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant has not provided and the record does not contain any evidence which shows that the applicant was raped while serving on active duty.
2. The applicant's lengthy period of AWOL was serious misconduct which certainly warranted an undesirable discharge.
3. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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