IN THE CASE OF:	  

		BOARD DATE:	        19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080015431 


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 all references to assault charges that were filed against him on or about 6 March 2008 be removed from his Official Military Personnel File (OMPF).

2.  The applicant states that the charges were false and that the police exaggerated out of anger.

3.  The applicant provides in support of his application a notarized statement from his wife dated 21 August 2008.

CONSIDERATION OF EVIDENCE:

1.  On 20 August 2007, the applicant enlisted in the Regular Army in Syracuse, New York for 4 years and 18 weeks, in the pay grade of E-1.  He successfully completed his training as a cavalry scout.  He was advanced to the pay grade of E-2 on 20 February 2008.

2.  On 6 March 2008, the Military Police Department at Fort Carson, Colorado received a complaint of domestic violence against the applicant from his wife.  According to the Military Police Report, the applicant was involved in a verbal altercation with his wife that became physical.  During the altercation, the applicant allegedly kicked the bathroom door causing damage to the door and he assaulted his wife by pushing her head against the bathroom mirror causing her to black out.  According to the Military Police Report, he then pinned his wife's arms against the wall to keep her from leaving the room and he covered her mouth when she attempted to scream.  The altercation ended with the applicant cutting his left wrist and having to be rushed to the community hospital emergency room.  The Military Police Report describes the offense as assault consummated by a battery and the report indicates that alcohol was involved.

3.  On 11 March 2008, the applicant was arrested and detained on the charges of assault, domestic violence, self injury without intent to avoid service, and damage to private property.

4.  An investigation was initiated into the allegations against the applicant and the Investigator Data Form lists his offenses as assault consummated by battery, wrongful destruction of Government property, and self injury without intent to avoid service.  During the investigation sworn statements were obtained from the applicant's wife and additional witnesses all attesting to the fact that the applicant assaulted his wife, destroyed property during the assault, and cut his own wrist.  In a sworn statement provided to an investigator, dated 11 March 2008, the applicant admitted to holding his wife beyond her own free will and holding his hand over her mouth to keep her quiet.  He also admitted to cutting himself on his arm.

5.  The Report of Investigation that was completed regarding the incident shows the investigating officer concluded, in his opinion, there was a sufficient amount of evidence to title the applicant with assault consummated by battery, wrongful destruction of Government property, and self injury without intent to avoid service.

6.  In an undated memorandum, the applicant's commander notified him of his intent to initiate action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 14-12c, for commission of a serious offense.  His commander cited assault consummated by a battery and wrongful damage of Government property as the bases for his recommendation.  He acknowledged receipt of the notification on 1 May 2008 and, after consulting with counsel, he opted not to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge on 21 May 2008 and directed the issuance of a discharge under honorable conditions (general).  Accordingly, on 10 June 2008, 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 9 months and 21 days of net active service and he was furnished a general discharge.



8.  In a notarized statement, dated 21 August 2008, that was submitted in support of his application, the applicant's wife states that the charges that she filed against the applicant were false and that he was defending himself.  She states that she would really like for the charges to be removed from his records as she does not want them to affect his ability to reenlist in the future.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in an individual’s OMPF; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in an individual’s OMPF; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in, and when appropriate, removed from the OMPF.  This regulation provides, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

10.  Army Regulation 600-37, paragraph 3-3c provides that completed investigative reports may be filed in the performance portion of the OMPF without further referral to the recipient.  This includes criminal investigation reports (or authenticated extracts) that have resulted in elimination or disciplinary action against the person concerned.  When it is not practical to include the entire report (or an extract), the investigative report will be referenced.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that all references to assault charges that were filed against him on or about 6 March 2008 should be removed from his OMPF.

2.  His contentions have been considered.  However, in accordance with the applicable regulation, once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

3.  The applicant's records show that he was arrested, detained and charged with assault, domestic violence, self injury without intent to avoid service, and damage to Government property.  At the time of his arrest, and during the investigation process, his wife provided a sworn statement indicating that the applicant assaulted her and he admitted that he committed the assault.  The charges and the evidence surrounding the charges were filed in his OMPF in accordance with the applicable regulation.  While the applicant has submitted a statement from his wife, now contending that the charges that she filed against him were false, this statement is contrary to the sworn statement that his wife made at the time of the incident and it is also contrary to the applicant’s statement at the time of the incident.  

4.  The statements submitted by the applicant and his wife are not sufficiently mitigating to warrant the relief requested.

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

___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)                                         AR20080015431



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015431


4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1