APPLICANT REQUESTS:  In effect, the applicant requests that his administrative reduction be set aside and he be restored to pay grade E-7, considered for promotion to pay grade E-8, and if selected, retired in that pay grade, and that all his recruiting awards that were erroneously revoked, be returned to him.    

APPLICANT STATES:  In effect, the applicant states that he was not mentally sound when he fired a shotgun at his wife, and that a reduction board was not convened in a timely manner. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant served on continuous active duty from 
12 September 1974 until his retirement in 1994.

In a report of medical history that the applicant completed on 29 November 1989, he stated that he had glaucoma, difficulty hearing, back pain, and insomnia.  The applicant did not indicate depression or excessive worry, or nervous trouble of any sort, nor treatment for any mental illness.  The applicant stated that he was in excellent health.

A 20 December 1990 statement from an Air Force doctor indicates that the applicant entered into an alcoholism rehabilitation center on 29 November 1990.  He was subsequently discharged and qualified for worldwide duty, and strongly instructed to participate in Alcoholic Anonymous, and follow his written recovery plan.  The applicant and his wife were highly encouraged to seek marital counseling. 

A 5 August 1992 Order on Probation by the Superior Court of the state of California indicates that the applicant was convicted of a felony and sentenced to three years in the state prison, suspended.  He was placed on probation for five years, and ordered to serve 180 days in the Santa Barbara county jail, with credit for time served and good time/work time (NOTE:  A 26 May 1994 Criminal Investigation Division (CID) report indicates that the applicant broke 
into his estranged wife’s residence on 2 November 1991, pointed a shotgun at her and her male friend, and fired the shotgun numerous times at his wife, who sustained powder burns to her face and abrasions to her hand.  The 180 days  was served by means of house arrest).

The applicant was hospitalized from 15-22 January 1992 for depression psychosis-severe, and treated on 16 January for an abnormal loss of weight.  A 15 January 1992 medical report states that the applicant was a high risk for violent acts to himself and others, that he had high anxiety and was asking for help.  He had a long history of alcohol abuse.

The applicant was admitted to a VA medical center at Long Beach, California on 22 January 1992 and released on 
27 January for evaluation of depressed mood and loss of control.  The applicant’s condition upon his release was diagnosed as adjustment disorder with depressed mood (resolved), alcohol dependence, antisocial narcissistic traits.  He had job stressors related to active service duties, marital discord, and legal problems.

A summary of psychological care, 27 January 1992, from the Long Beach Naval Hospital indicates that the applicant had beaten his wife, fracturing two ribs, and that he had shot at her boyfriend’s truck, both incidents occurring before the November 1991 incident.  The clinical psychologist stated that the applicant had made an extraordinary effort in his recovery treatment and planning between January and May 1992, that his psychological and emotional functioning were well above average, and that the applicant was no longer in need of psychological treatment.

A 1 May 1992 medical report based on his being a patient in the Mental Health Department at Long Beach Naval Hospital after his discharge from the VA hospital on 27 January indicates that the applicant had a high likelihood of manipulating people and circumstances to his best interest 
(narcissistic traits), and some indications of anti-social traits.  He was diagnosed as being alcohol dependent (in recovery), and having a personality disorder not otherwise specified with narcissistic and anti-social traits.  Stressors were moderate.
 
A 21 May 1992 report of medical examination indicates that the applicant had a history of glaucoma, tenderness in his right knee, psoriasis in this right elbow, that he was currently being treated for a mental condition/alcohol recovery, that he had a history of alcohol dependence, that he had been treated for depression, that he had a personality disorder, and that he had lower back pain, among other ailments.  His physical profile was 1 1 1 2 2 1.  In the report of medical history the applicant furnished for the examination, he stated that he was in fair health.  

On 9 July 1992 the commanding officer of the Santa Ana, California recruiting battalion recommended that the applicant be relieved from recruiting duty.  The applicant concurred and requested reassignment into MOS 11B40 (infantryman).  That recommendation was approved by the Total Army Personnel Command (PERSCOM) on 17 November 1992.

On 18 December 1992 the 6th Recruiting Brigade commander provided a written justification for the delay in taking appropriate action to reduce to applicant pursuant to Army Regulation 600-8-19, citing the delay of trial by a civilian court pending a psychological evaluation conducted by the state of California, further delay pending plea negotiations, delay in receiving sentencing documents, and delay associated with negotiations between the brigade judge advocate and the applicant’s defense counsel concerning conditional waivers of the reduction board and the administrative separation board.

On 22 February 1993 the applicant was notified by the 6th Recruiting Brigade commander that an administrative reduction board would convene within 15 days to hear the 
facts and circumstances concerning a criminal offense committed on 2 November 1991 involving assault with a deadly weapon.  The applicant was informed of his rights in this memorandum.

On 17 March 1993 the applicant was furnished a conditional waiver to the reduction board by the Trial Defense Service at Fort Irwin, California.  The applicant did not sign this waiver. 

On 6 April 1993 the applicant’s recruiter badge and all achievement stars were revoked by the Commanding General of the U.S. Army Recruiting Command, effective 5 October 1992.

On 22 April 1993 a reduction board convened to determine if the applicant should be reduced in rank because of a civilian conviction.  The applicant indicated that he had fired his appointed defense counsel, did not desire counsel and wished to represent himself.  The recorder indicated that the delay in the convening of the reduction board was directly related to the fact that the reduction board was directly tied into an elimination action, and the delay was also caused by submission of documents by the applicant’s detailed defense counsel (whom he had since fired).  The board heard testimony and recommended that the applicant be reduced to pay grade E-6.  The convening authority approved the recommendation on 19 May 1993. On 9 June 1993 the applicant was reduced to pay grade E-6 effective 
19 May 1993.  

On 10 May 1993 a board of officers convened to determine if the applicant should be eliminated from the Army.  The board determined that the applicant did commit serious acts of misconduct, but recommended that his separation from the Army was not warranted.  On 28 June 1993 the separation authority approved the findings and recommendations of the board, that the applicant be retained in the Army. 

A 22 July 1993 memorandum from a medical official at the Medical Department Activity at Fort Irwin, California to the Commanding officer of the Santa Ana Recruiting Battalion stated that the applicant met the standards for retention in the Army and did not require a medical evaluation board.
A 29 June 1994 report of medical examination indicates that the applicant had a hearing loss, had glaucoma, a skin condition on both elbows, that he had had right knee surgery, that he had a compressed vertebrae and lower back pain.  He was qualified for retirement with a physical profile of 1 1 1 2 3 1.  The applicant stated that he was in fair health.

The applicant retired on 30 September 1994 with 
20 years and 19 days of service. 

Army Regulation 600-8-19 provides the policies and procedures concerning promotion and reduction of enlisted personnel.  Paragraph 6-1 of that regulation states that a reduction board is required for soldiers in grades E-5 through E-9 for reduction for misconduct (civil conviction). Board appearance may be declined in writing, which will be considered as acceptance of the reduction board’s action.
A reduction board will be convened within 30 duty days after receipt of documentary evidence.  The reduction authority may extend the 30 duty day limitation for good cause.

A reduction board will be convened within 30 days after notification is given the individual in writing.  The reduction authority may extend that 30 duty day limitation for good cause.

Paragraph 6-8 states that the reduction board may recommend reduction of one or more grades, retention of current grade, or reassignment in grade.

Army Regulation 672-5-1, then in effect, prescribes the policy, criteria, and administrative instructions for individual military awards and badges.  Paragraph 5-46 of that regulation provides for award of recruiter badges and achievement stars and states, in effect, that the Commanding General of the U.S. Army Recruiting Command may authorize the wearing of such badges.  That paragraph also states that that official is delegated authority to revoke those badges.


DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant's reduction for misconduct because of  
his conviction of a felony by a civil court is warranted.
The Board notes that assault with a dangerous weapon is a serious offense, the punishment of which, if convicted by a military court, could result in a dishonorable discharge and confinement for 10 years.  It is the Board’s considered opinion that the reduction board was lenient.  The applicant could have been reduced by more than one grade. 

2.  Considering the entirety of the case, the delays in the proceedings of the reduction board were not substantially prejudicial to the applicant's rights.  The delays were reasonable and completely justified and, in effect, enhanced the applicant’s options.  The same result could reasonably have been expected had there not been any delays.

3.  There is no basis in fact in the applicant’s contention that he was denied medical treatment or denied a physical profile prior to the November 1991 date when he went after his wife with a shotgun.

4.  The applicant’s recruiter awards were revoked by the official with the authority to do so.  Absent information to the contrary, it is presumed that that official had good reason and acted in good faith.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 

6.  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 record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant’s request.
  
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director