IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100012136 


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 under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states he was sexually assaulted while serving in Germany.  He was sent to Landstuhl Army Hospital for about 3 days and was then sent to the battalion headquarters.  He contends he was told if he reenlisted he would be transferred to the United States.  Later he was told to return to his company, but he refused because of sexual trauma.  Instead, he went absent without leave (AWOL) by taking a commercial flight back to the United States.  He was not afforded reasonable psychiatric care or legal counsel.

3.  The applicant provided no additional documentation in support of his application.

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 17 December 1968, the applicant enlisted in the Regular Army for 2 years.  He completed his initial training and was awarded military occupational specialty 36K (Wireman).

3.  On 24 June 1969, the applicant accepted nonjudicial punishment for failing to appear at a designated place of duty at a prescribed time.  He was given an oral reprimand.

4.  On 22 July 1969, the applicant was assigned duty as a wireman with the 5th Battalion, 1st Artillery Regiment, located in the Federal Republic of Germany.

5.  On 2 October 1969, the applicant was advanced to private first class, pay grade E-3.

6.  On 14 November 1969, the applicant was discharged for the purpose of immediate reenlistment.  The next day, he reenlisted for a period of 3 years.

7.  The applicant was AWOL from 28 December 1969 to 22 December 1970.
On 13 January 1971, the applicant was convicted by special court-martial of being AWOL and sentenced to confinement for 3 months, and reduction to private, pay grade E-1.  He remained in confinement until 30 March 1971.

8.  The applicant was AWOL from 17 to 23 July 1972.  On 25 July 1972, the applicant accepted nonjudicial punishment for this period of AWOL.

9.  The applicant was also AWOL from 16 to 24 January 1973 and from 7 March to 3 September 1973.

10.  On an unknown date, charges were filed against the applicant.  On 
11 September 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and of the procedures that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. 

11.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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 laws.

12.  The court-martial charges and remainder of the discharge packet are not available for review.

13.  On 30 October 1973, the applicant was accordingly discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, with a characterization of service of  under other than honorable conditions.

14.  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.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.

16.  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.  

17.  Army Regulation 15-185 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 under other than honorable conditions discharge should be upgraded to general, under honorable conditions because he was sexually assaulted while serving in Germany and he was not afforded reasonable psychiatric care or legal counsel. 

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

3.  The available evidence does not show the applicant was sexually assaulted or that he was denied reasonable psychiatric care or legal counsel and the applicant has not provided any substantiating evidence to support this contention. 

4.  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)                                         AR20100012136





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ABCMR Record of Proceedings (cont)                                         AR20100012136



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