IN THE CASE OF:	  

		BOARD DATE:	        23 OCTOBER 2008

		DOCKET NUMBER:  AR20080014755 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge be upgraded to a fully honorable discharge and that the date of birth (DOB) on his DD Form 214 be corrected. 

2.  The applicant states, in effect, that he was young and immature at the time and did not have the training or ability to work out his marital problems and stay in the military.  He goes on to state that he was in a combat arms military occupational specialty (MOS) and was always in the field, which caused a strain on his marriage.  He further states that he is currently married to his spouse of 19 years, that he has a child by his spouse and is living happily.  He also states that he has worked in Afghanistan to support the military on Bagram Air Force Base and desires to have his discharge upgraded.  He also states that his DOB on his DD Form 214 incorrectly lists his DOB as 22 October 1965 and should reflect it as 22 December 1965. 

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

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.  The applicant request correction of his DOB on his DD Form 214.  Evidence of record shows that on 8 August 2008, the National Archives and Records Administration (NARA) issued a DD Form 215 (Correction to DD Form 214) to reflect that the applicant’s DOB was changed to 22 December 1965.  As such, there is no further correction to be made on this issue.  Therefore, this issue will not be further discussed in these proceedings.  A copy of the abovementioned DD Form 215 will be provided to the applicant along with these proceedings.

3.  The applicant enlisted in the Regular Army in Raleigh, North Carolina on
18 July 1984 for a period of 3 years and training as a cavalry scout.  His records indicate that he was married at the time of his enlistment.  He completed his one-station unit training (OSUT) at Fort Knox, Kentucky and was transferred to Fort Stewart, Georgia for his first duty assignment.  His first child (a daughter) was born on 10 September 1985 and he was advanced to the pay grade of E-3 on 1 November 1985. 

4.  On 13 January 1986, he was transferred to Germany.  He was advanced to the pay grade of E-4 on 1 April 1986 and was promoted to the rank of sergeant on 20 February 1987.  

5.  He departed Germany on 9 July 1987 and was transferred back to Fort Stewart.  On 26 July 1989, he reenlisted for a period of 6 years and a selective reenlistment bonus.  

6.  Although not fully explained in the available records, it appears that the applicant got divorced and subsequently remarried on 4 April 1990.  His daughter remained in the custody of his former spouse. 

7.  On 28 June 1990, he was transferred to Bad Hersfeld, Germany for assignment to an armored cavalry regiment and on 12 October 1990, he was granted a command sponsored tour.  His current spouse was already in the command at the time. 


8.  On 20 December 1990, nonjudicial punishment was imposed against the applicant for unlawfully assaulting his wife in the face with his fists.  His punishment consisted of a reduction to the pay grade of E-4 (suspended, if not vacated before 20 June 1991), a forfeiture of pay (suspended if not vacated before 20 June 1991), and extra duty.

9.  The applicant failed to go at the time prescribed to his place of duty on
6 January 1991 and the imposing commander vacated the suspended portion of his punishment (reduction and forfeiture of pay).

10.  On 12 February 1991, NJP was imposed against the applicant for failure to go at the time prescribed to his place of duty on 6 January 1991 and for missing movement.  His punishment consisted of 14 days extra duty.

11.  On 8 March 1991, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense – Assault.

12.  After consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive his right to a hearing before an administrative separation board in return for at least a general discharge.  He also elected not to submit a statement in his own behalf.

13.  On 9 March 1991, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

14.  Accordingly, he was discharged with a general, under honorable conditions discharge on 21 March 1991, under the provisions of Army Regulation 635-200, chapter 14 for misconduct – commission of a serious offense.  He had served
6 years, 8 months, and 4 days of total active service and was 25 years of age at the time of his discharge.

15.  There is no indication in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.  Accordingly, his discharge appropriately characterizes his record of service during the period in question.

3.  The applicant’s contention that he was young and immature at the time and that he has had good post-service conduct has been noted; however, neither of them separately or in sum serve to overcome the misconduct which served as the basis for his general discharge. 

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.
 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X____  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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080014755



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ABCMR Record of Proceedings (cont)                                         AR20080014755



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