IN THE CASE OF:	  

		BOARD DATE:	  27 January 2010

		DOCKET NUMBER:  AR20090009452 


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, in effect, upgrade of his general, under honorable conditions discharge (GD) to an honorable discharge (HD).

2.  The applicant states, in effect, his discharge was the result of a bad marriage to an older woman.  He states he tried to send his wife home from Germany, but his commander recommended counseling.  He claims he hit his wife when he found her in bed with another man.  He states he has received counseling and he is happily remarried since his discharge.

3.  The applicant provides a statement from a Licensed Clinical Social Worker (LCSW), dated 26 October 2005, in support of this 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 enlisted in the Regular Army (RA) and he entered active duty on 20 November 1986.  He was trained in and awarded military occupational specialty (MOS) 63W (Wheel Vehicle Mechanic).

3.  The applicant's record shows that during his active duty tenure, he earned the Army Service Ribbon, Overseas Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  A Military Police Report from the Provost Marshal's Office, Schweinfurt Military Community, Germany, dated 27 October 1988, shows a complaint was filed against the applicant for assault (domestic).

5.  On 28 November 1988, the applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following offenses:

	a.  behaving with disrespect towards a commissioned officer;

	b.  disobeying a lawful command from a commissioned officer;

	c.  being disrespectful towards a noncommissioned officer;

	d.  disobeying a lawful order from a noncommissioned officer;

	e.  disobeying a lawful order from a warrant officer;

	f.  dereliction in the performance of his duties by failing to properly secured his M-60 machine gun; and 

	g.  unlawfully biting his spouse on her right hand.

6.  A Military Police Report from the Provost Marshal's Office, Schweinfurt Military Community, dated 9 February 1989, shows a complaint was filed against the applicant for assault (domestic disturbance).

7.  On 15 February 1989, the unit commander notified the applicant that action was being initiated to separate him under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for misconduct - commission of a serious offense.  The commander cited the applicant's UCMJ violations and informed the applicant he was recommending he receive a GD.  The applicant acknowledged receipt of the notification on 
16 February 1989.
8.  On 22 March 1989, the separation authority approved the separation action and directed the applicant receive a GD.  On 14 April 1989, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 
2 years, 4 months, and 25 days of creditable active military service.

9.  On 16 June 1993, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

10.  The applicant provided a statement from an LCSW who indicates she has discussed with the applicant his need to complete domestic violence treatment. She further indicates the applicant's current spouse attests to the fact the applicant is respectful, non-violent, and non-controlling with her.  She notes that his wife was not the victim of his abuse in 1995.  She finally concludes that the applicant seems to have corrected the problems that were occurring at the time of his violence.

11.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The applicant has failed to show that he was improperly discharged.
2.  The applicant's record of indiscipline includes two incidents of domestic assault and several instances of disrespect towards commissioned officers and noncommissioned officers.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's requested 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.



      ___________X__________
               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)                                         AR20090009452



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ABCMR Record of Proceedings (cont)                                         AR20090009452



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