IN THE CASE OF:	

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100006962 


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 undesirable discharge be upgraded to a general discharge.

2.  The applicant states his promotion record shows he was a good service member.  He contends that he was sexually assaulted in Heidelberg, Germany.  He was medically evacuated from the Federal Republic of Germany but he never received the proper medical care.

3.  The applicant provides, in support of his application, copies of his reconstructed DA Form 20 (Enlisted Qualification Record), DD Form 4 (Enlistment Contract), two Department of Veterans Affairs (VA) letters, a letter from the National Personnel Records Center, and two letters from his US Senator.

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.  On 21 January 1972, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 71B (Clerk).  He was subsequently assigned for duty in the Federal Republic of Germany.

3.  On 19 June 1972, the applicant was assigned as a clerk with the 130th Hospital in Heidelberg, Germany.  On 12 October 1972, he was assigned to this hospital in a patient status.

4.  On 19 October 1972, the applicant departed the hospital.  He was subsequently assigned as a patient to the Medical Holding Company, Fort Campbell, Kentucky. 

5.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows:

	a.  advancement to pay grade E-2 on 21 May 1972;

	b.  advancement to pay grade E-3 on 3 August 1972;

	c.  reduction to pay grade E-1 on 14 August 1973; and

	d.  advancement to pay grade E-2 on 14 October 1973.

6.  Item 44 (Time Lost) of the applicant’s DA Form 20 shows he was absent without leave (AWOL):

	a.  from 11 to 16 November 1972;

	b.  from 18 June to 16 July 1973;

	c.  from 27 August to 3 September 1973; and

	d.  from 17 to 20 September 1973.

7.  The applicant was convicted by special court-martial for being AWOL in June/July; and August/September 1973.  He was reduced to pay grade E-1.

8.  The applicant's discharge packet is missing from his military records.  However, his DD Form 214 shows he was administratively discharged on 
28 August 1974, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service and issued an undesirable discharge.  He had completed 1 year, 8 months and 13 days of creditable active service and he had 330 days of lost time due to being AWOL.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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 at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, an undesirable discharge was appropriate when the applicant separated.

11.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to general discharge because he was a good service member.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of service is commensurate with the applicant’s overall record of military service.

3.  Based on his record of AWOL, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  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 has failed to submit evidence that would satisfy this requirement.

5.  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.

ABCMR Record of Proceedings (cont)                                         AR20100006962



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100006962



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1