RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060016289


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general under honorable conditions
discharge be upgraded to honorable.

2.  The applicant states he believes his early discharge was understandable
from his commander’s view.  However, he also believes that it was rather
hard considering the complete chain of events.  He believes he should have
been punished at that time, but he does not consider the punishment to be
completely just.  It is extremely hard to be marked for the rest of his
life.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 February 1991.  The application submitted in this case is
dated 29 October 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 28 December 1983.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 71L (Administrative Specialist).  He was
honorably discharged on 7 April 1986 and immediately reenlisted on 8 April
1986.  He    was honorably discharged on 30 August 1988 and immediately
reenlisted on     31 August 1988.

4.  On 6 February 1990, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for participating in a breach
of peace by wrongfully engaging in a fist fight on the dance floor of a
civilian club; for being drunk and disorderly; and for resisting
apprehension.  His punishment was a reduction of one grade, to pay grade E-
3; extra duty for 30 days; and restriction for 15 days.

5.  An Investigator’s Statement, dated 27 October 1990, indicated that a
German female National, who wanted to remain anonymous for fear of
receiving bodily harm from the applicant, reported to the military police
that the applicant was drunk and was driving erratically.  The military
police located the applicant at a club and asked him to step outside where
a field sobriety test was administered.  He failed the test, and a
breathalyzer test administered at the military police station resulted in a
reading of 1.98 grams.  He denied that he had been driving.

6.  Several sworn statements (from military police, from a gate guard, and
from the victim) indicated that in the early morning hours of 1 January
1991 the applicant’s former girlfriend met (apparently unplanned) the
applicant at the Noncommissioned Officer’s Club.

7.  In her sworn statement, the victim explained that she was five-months
pregnant with the applicant’s child.  She stated she was trying to talk to
the applicant about their relationship and the child, but he rejected her
and then hit her on her left cheek with the back of his right hand.  She
left the Club and met the applicant outside.  They walked together towards
the main gate, arguing all the time.  She stated she told him he had
changed for the worse and just used people.  Thereupon, the applicant
pushed her against the chest area several times.  He then hit her with his
hands on both ears at least four or five times.  (In a second statement,
the victim stated that at this point she hit him back and called him
“n_____.”)  He then struck her in the face with his fist three times.
After that, he threw her on the street, and she hit the street face down.

8.  In a sworn statement from the gate guard on duty at the main gate at
the time, the gate guard stated that the applicant admitted to hitting the
victim and stated that “if she calls me a n____ again I’ll hit her again.”

9.  On 20 January 1991, the applicant completed a separation physical
examination and was found qualified for separation.

10.  On 20 January 1991, the applicant completed a mental status
evaluation.  He was found to have the mental capacity to understand and
participate in proceedings.

11.  On 12 February 1991, the applicant’s commander initiated separation
proceedings under the provisions Army Regulation 635-200, chapter 14 for
commission of a serious offense (assault).  He recommended the applicant
receive a general discharge.

12.  On 12 February 1991, the applicant was advised by consulting counsel
of the basis for the contemplated separation action.  He understood he was
entitled to have his case heard by an administrative separation board.  He
waived consideration of his case by an administrative separation board.  He
declined to submit a statement on his own behalf.

13.  On 12 February 1991, the applicant’s commander recommended the
applicant be separated for misconduct; specifically, for commission of a
serious offense (assault).

14.  On 15 February 1991, the appropriate commander approved the
recommendation to separate the applicant and directed he receive a General
Discharge Certificate.

15.  On 25 February 1991, the applicant was discharged under the provisions
of Army Regulation 635-200, chapter 14, for misconduct - commission of a
serious offense.  He had completed a total of 7 years, 1 month, and 28 days
of creditable active service with no lost time.

16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  A discharge under other than
honorable conditions is normally appropriate for a Soldier discharged under
this chapter.  However, the separation authority may direct a general
discharge if such is merited by the Soldier’s overall record.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  During the applicant’s last enlistment, he was involved in two
incidents involving violence.  In February 1990, he accepted nonjudicial
punishment for participating in a breach of peace by wrongfully engaging in
a fist fight on the dance floor of a civilian club; for being drunk and
disorderly; and for resisting apprehension.  Less than a year later, he
committed an assault on his pregnant, former girlfriend.
2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  He had an opportunity to
submit a statement in his own behalf, and he failed to do so.  He also had
an opportunity to have his case heard by an administrative separation
board, but he failed to take advantage of that opportunity.

3.  It appears the applicant’s chain of command considered his length of
service and possibly considered mitigating circumstances concerning
provoking words from his former girlfriend in determining he should receive
a general under honorable conditions discharge instead of a discharge under
other than honorable conditions.  Considering all the facts of the case, a
further upgrade of his discharge to fully honorable does not appear to be
warranted.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 February 1991; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    24 February 1994.  The applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__klw___  __phm___  __ksj___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016289                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070510                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19910225                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14                       |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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