RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  06 May 2009
	DOCKET NUMBER:  AR20070019009 


	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

Ms. Deyon D. Battle

Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 be upgraded to an honorable discharge.

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.  He states that his discharge was based on incidents outside of his military service and that he has not committed any offenses since his discharge.

3.  The applicant provides in support of his application, a copy of his resume.

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 24 March 1987, the applicant enlisted in the Army in Honolulu, Hawaii, for 4 years, in the pay grade of E-1.  He successfully completed his training as an aircraft fire control repairer.  

3.  The applicant was promoted to the pay grade of E-2 on 24 September 1987; he was promoted to the pay grade of E-3 on 24 March 1988; and he was promoted to the pay grade of E-4 on 24 May 1989.

4.  The available records show that on 21 October 1989, the applicant was arrested by civil authorities and charged with first degree aggravated assault on a child under the age of 16.  According to police statements, the Criminal Investigation Report of Investigation, and statements submitted by the applicant 




at that time, he got angry with his 11-month old stepdaughter, intentionally dropped her onto a concrete sidewalk, picked her up and then shook her violently.  When he was questioned by police officers, the applicant stated that he got "pissed-off" because the infant would not stop crying.  The records show that as a result of his misconduct, the infant suffered a fractured right rear skull, brain damage to the right rear, retinal hemorrhage in the right eye, and injuries yet to be determined.  The infant's condition upon arrival at the hospital was critical.

5.  On 26 February 1990, the applicant underwent a mental status evaluation and he was found to have no outstanding psychiatric condition at the time of his interview with the clinical psychologist.  The psychologist determined that he had the mental capacity to understand and to participate in discharge proceedings.

6.  On 7 March 1990, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.  His commander cited a 21 October 1989 arrest for aggravated assault on a child under 16 years of age as the basis for the recommendation for discharge.  

7.  The applicant acknowledged receipt of the notification on 15 March 1990, and he opted to submit a statement in his own behalf.  In his statement he requested that his elimination from the service for the one time pending criminal offense be either suspended or disapproved.  He went on to state that his goal had also been to do the very best job professionally, so that he could gain as much education as possible.  He stated that he proudly served his unit and that he had done whatever was asked of him as a Soldier.  He stated that he was not happy nor proud of the incident which brought the initiation of separation action against him and that he did not understand how the Army could base their actions on a crime he had not committed or been proven guilty of in a court of law.  He requested that he be allowed to remain on active duty in the Army that he loved until his court case was settled so that he could prove his innocence to the military.  He concluded his statement by requesting that he be furnished an honorable discharge if his retention in the Army was not possible so that he could seek civilian employment to support his family.

8.  The appropriate authority approved the recommendation for discharge on 6 April 1990, and he directed the issuance of a general discharge.  Accordingly, on 20 April 1990, the applicant was discharged, under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.  He had completed 3 years and 27 days of net active service.


9.  A review of the available record fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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.

DISCUSSION AND CONCLUSIONS:

1.  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.

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

3.  The applicant's contentions have been noted.  However, the fact that his discharge was based an isolated incident that occurred in his personal life is not a basis for upgrading his discharge.  His record shows that he was arrested and charged with first degree assault on his stepdaughter who was only 11 months old at the time, that he intentionally dropped her onto a concrete sidewalk, and then picked her up and shook her violently.  In a statement that he submitted to investigating officers, he admitted that he got "pissed off" and dropped the infant because she would not stop crying.  

4.  The applicant was a Soldier in the United States Army at the time that he violently and intentionally assaulted his stepdaughter and considering the nature of his offense, it does not appear that his general discharge was inequitable or too harsh.

5.  In order to justify correction of a military record the applicant must show 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.

6.  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

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070019009



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508