RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070013277 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that he is a loyal citizen who loves his country.  He was bullied when he was young, so he learned to defend himself and fight back.  He had a couple of fights and was discharged.  He desires this upgrade so he can move on with his life and be a productive husband and father.

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

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 2 August 1988, the applicant enlisted in the Regular Army for 4 years.   He completed his initial training and was awarded military occupational specialty (MOS) 31L (Wire Systems Installer).

3.  On 4 April 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being disrespectful in language toward a superior noncommissioned officer.  The punishment included reduction to private, pay grade E-1; a forfeiture of $163.00 pay per month for 1 month; and 14 days restriction and extra duty.

4.  On 17 April 1990, the applicant accepted NJP (assault consummated by battery) for unlawfully striking another Soldier [a private] in the face with his fists, in violation of Article 128, UCMJ.  The punishment included reduction to private, pay grade E1; a forfeiture of $168.00 pay per month for 1 month (suspended); and 14 days extra duty.
5.  On 29 May 1990, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for commission of a serious offense.  The commander cited the two NJP’s as support for his request and that the applicant’s quality of service was poor.  He further stated that he had no potential for useful service and recommended that his service be characterized as general under honorable conditions.

6.  On 31 May 1990, the applicant consulted with counsel concerning his rights and elected to submit a statement in his own behalf [not available in the records] and to request consulting counsel.  He also elected not to receive a separation medical examination.

7.  On 21 June 1990, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

8.  Accordingly, on 3 July 1990, the applicant was discharged under honorable conditions.  He had completed 1 year, 11 months, and 2 days of creditable active service.

9.  On 23 June 1993, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

10.  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, and 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.

11.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely-related offense under the Uniform Code of Military Justice.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 128 (assault consummated by battery) is a punitive discharge and confinement for 6 months.


DISCUSSION AND CONCLUSIONS:

1.  The record shows that the applicant received NJP for two offenses in about a 12 month period.  His striking another Soldier with his fists was clearly a commission of a serious offense.  

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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  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 this requirement.

5.  In view of the above, the applicant’s request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRH___  __DKH__  __EEM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_    _David K. Haasenritter___
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
20080125  
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.