IN THE CASE OF:	  

		BOARD DATE:	       1 JUNE 2009

		DOCKET NUMBER:  AR20090000337 


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 an upgrade of his general discharge to fully honorable.

2.  The applicant states that he previously had two honorable discharges and would like his third one to be the same so that he may qualify for benefits.

3.  The applicant did not provide any additional documentary evidence 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's records show he enlisted in the Regular Army for a period of 3 years on 13 August 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  He also executed a 5-month extension on 18 September 1987, a 3-year reenlistment on 12 October 1989, and a 6-month extension on 6 November 1989.  He was promoted through the ranks to sergeant (SGT)/E-5 on 1 June 1989.

3.  The applicant’s records also show he completed two foreign service tours in Germany from on or about 28 December 1984 to on or about 17 June 1986 and on or about 27 February 1990 to on or about 14 February 1981. 

4.  The applicant’s records further show he was awarded the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon, the Overseas Service Ribbon, the Army Achievement Medal, the Good Conduct Medal (2nd Award), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

5.  The applicant's records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 24 November 1987, for committing an assault upon a female by striking her about her body with a closed fist and intentionally inflicting grievous bodily harm upon her on or about 11 November 1987, and damaging by means of force a window in government quarters on or about 11 November 1987.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $210.00 pay for 2 months, and 45 days of extra duty.  On 30 November 1987, he appealed his punishment, and on 11 December 1987, the next higher authority granted him partial relief in the form a 6-month suspension of his reduction; 

	b.  on 20 November 1990, for being drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces on or about 8 September 1990.  His punishment consisted of a reduction to specialist four (SP4)/E-4 (suspended until 20 May 1991), a forfeiture of $560.00 pay, 45 days of extra duty, and an oral reprimand.  

6.  On 21 November 1991, the Wiesbaden Resident Agency, U.S. Army Criminal Investigation Command (USACIDC) investigated allegations of assault of a child under the age of 16 when it was alleged that the applicant kicked his 11-month old son in a violent manner approximately two weeks earlier.
7.  On 1 January 1991, the Wiesbaden Resident Agency, USACIDC conducted a second investigation into allegations of assault consummated by battery and determined that the applicant willfully and unlawfully struck a female in the head with his fist resulting in injuries that did not require medical attention on 31 December 1990.

8.  On 3 January 1991, the suspension of the applicant's punishment to reduction to SP4/E-4 imposed on 20 November 1990 was vacated when he unlawfully struck a female in the forehead with his fist on or about 31 December 1990.

9.  On 31 January 1991, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations), for misconduct, commission of a serious offense.  Specifically, the immediate commander cited the applicant’s spousal abuse while under the influence of alcohol. 

10.  On 31 January 1991, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.

11.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

12.  On 31 January 1991, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct-commission of a serious offense, with the issuance of an under honorable conditions (general) characterization of service.  

13.  On 31 January 1991, the applicant’s intermediate commander recommended the applicant be separated from the Army for misconduct, commission of a serious offense with the issuance of a general discharge with an under honorable conditions characterization of service.  
14.  On or about 1 February 1991, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct, commission of a serious offense, and directed the applicant be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 15 February 1991.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated with a general discharge.  This form further confirms he completed a total of 6 years, 6 months, and 3 days of creditable military service.

15.  There is no indication in the applicant’s records 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharged should be upgraded.

2.  The evidence of record shows the applicant had a history of serious disciplinary problems including two instances of spousal abuse while drunk.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was accordingly separated under the provisions of paragraph 14-12c of Army Regulation 635-200 due to his misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  

3.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.   

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090000337



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ABCMR Record of Proceedings (cont)                                         AR20090000337



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