RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070007991 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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:

	a.  reconsideration of his request for correction of his official military personnel file (OMPF) by removing the relief for cause NCO (Noncommissioned officer) Evaluation Report (NCOER) he received for the period from July 2004 through June 2005.

	b.  in effect, that his April 2007 discharge orders from the United States Army Reserve (USAR) be revoked.

2.  The applicant states that the entries in Part IVa (Army Values) of the contested NCOER violate the provisions of Army Regulation 623-205, paragraphs 3-17a,b,c(1) and c(2), which prohibit references to unproven derogatory information.  He further states, in effect, that his discharge by reason of misconduct was unjust.

3.  The applicant provides a copy of the contested NCOER; four letters of support; an Enlisted Special Review Board (ESRB) appeal packet, dated 
14 September 2006; United States Army Human Resources Command, St. Louis (USAHRC-STL) Orders C-04-711114, dated 20 April 2007; USAHRC-STL Orders D-04-790097, dated 20 April 2007; four Orders for the Expungement of Criminal Offender Record, dated 4 August 2003; an Application/Renewal Hand Gun Carry Permit, dated 7 July 2003; an 81st Regional Readiness Command Memorandum of Reprimand, dated 14 December 2005; and USAHRC-STL Permanent Orders W-12-682853, dated 25 December 2006.

CONSIDERATION OF EVIDENCE:

1.  A portion of the applicant’s request involves reconsideration of his previous denial for correction of his official military personnel file (OMPF) by removing the relief for cause noncommissioned officer evaluation report (NCOER) he received for the period from July 2004 through June 2005, in ABCMR Docket Number AR20070000507, on 6 February 2007.

2.  The applicant contends that the contested NCOER violates the provisions of Army Regulation 623-205, paragraphs 3-17a,b,c(1) and c(2).  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15a governs requests for reconsideration.  This provision of regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR if the request is received within one year of the original decision and it has not previously been reconsidered.  Such requests must provide new evidence or argument that was not considered at the time of the ABCMR's prior 
consideration.  The ABCMR reviewed the applicant's request for reconsideration and determined that, although it was received within one year of the ABCMR's original decision, it did not include any new evidence or argument to substantiate removal of the relief for cause NCOER.  As a result, his request for reconsideration does not meet the criteria outlined above and will not be discussed further in this Record of Proceedings.

3.  The applicant's new issue of revoking the orders discharging him from the USAR will be considered by the Board.

4.  The applicant had prior service in the United States Army Reserve (USAR) and the Regular Army.  After a break in service, he enlisted in the USAR on 
30 April 1987.  He was ordered to active duty in an Active Guard Reserve (AGR) status on 5 November 2000.

5.  The applicant provided four Orders for the Expungement of Criminal Offender Record, dated 4 August 2003, that show charges were dismissed against him for false imprisonment, two counts of aggravated assault that occurred on 18 August 2000, and for criminal contempt-violation of order of protection that occurred on 
8 December 2000.

6.  On 7 October 2005, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for commission of a serious offense and for conviction by a civilian court.  The reasons cited by the commander was that the applicant on multiple occasions committed assault [wife number 1], on multiple occasions communicated threats [wife number 1], on multiple occasions was disrespectful towards a superior NCO, and for being convicted of criminal contempt (violation of order of protection).  The applicant was advised of his rights.

7.  On 27 October 2005, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant indicated that he was counseled by appropriate counsel and that he desired his case be heard by an administrative separation board.  The applicant also indicated that he would provide statements on his own behalf.  However, the applicant's statement in his own behalf is not available.  

8.  On 27 December 2005, the commander of the 81st Regional Readiness Command appointed a Board of Officers to consider the applicant's elimination action.  The board initially met on 23 April 2006, but it appears the board recessed before making a decision.  The board reconvened on 26 April 
2006 and found that the applicant was convicted of assaulting his wife on
8 August 2000 by civil authorities (charges dismissed); between October 2004 and February 2005 communicated threats, abused, and assaulted [wife 1 and wife 2]; was convicted of disobeying a court order of protection; engaging in conduct that was disrespectful towards a superior NCO; and failing to obey a lawful order.  The board recommended that the applicant be separated and issued a general under honorable conditions discharge.

9.  On 10 June 2006, the applicant’s commander re-notified him of the existing grounds for his ongoing separation for which he was previously notified, and of additional grounds for his separation under the provisions of Army Regulation 635-200, chapters 13 and 14; with regard to chapter 13, for being convicted of aggravated assault on 8 August 2000 [charge dismissed], for being convicted of disobeying a court order of protection on 9 September 2005, for disobeying a lawful order, and failing to obey an order to attend a Domestic Violence 
Counseling Course; with regard to chapter 14, for being convicted of aggravated assault on 8 August 2000 [charge dismissed], for being charged with abusing and/or assaulting a family member on numerous occasions between May 2000 and 2006, for committing assault on [wife 2] on numerous occasions, for communicating threats to [wife 2], and for being disrespectful towards and disobeying a superior NCO.

10.  On 11 May 2007, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200, for "MISCONDUCT, (SERIOUS OFFENSE)."  The applicant was issued a General, Under Honorable Conditions Discharge Certificate.  Records show that the applicant had completed over 26 years of creditable active and inactive service at the time of his separation.
   
11.  Effective 11 May 2007, the applicant was discharged from the USAR/AGR.

12.  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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.



DISCUSSION AND CONCLUSIONS:

1.  The applicant provided documents that show his 2000 civil conviction charges against him for false imprisonment, two counts of aggravated assault, and violation of order of protection were dismissed in 2003.  However, evidence shows that he was convicted in 2005 by civil authorities of criminal contempt (violation of order of protection), and accused of assault and communicating threats.  Based on the civil conviction and other offenses it appears he was properly given a narrative reason of misconduct - serious offense, and there is no basis on which to revoke his discharge orders.  The applicant had failed to show that the dismissal of the charges in 2003 would have resulted in a different result at his Board of Inquiry.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations. 

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS__  __SWF __  __RSV__  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.




____ Linda D. Simmons ___
          CHAIRPERSON


INDEX

CASE ID
AR2007007991
SUFFIX

RECON

DATE BOARDED
25 OCTOBER 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
100.0000.0000
2.

3.

4.

5.

6.