IN THE CASE OF:	  

		BOARD DATE:	    27 July 2010

		DOCKET NUMBER:  AR20090021583 


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 upgrade of his dishonorable discharge to a general discharge.

2.  The applicant states he apologizes for his totally unacceptable actions and says he was unable to hire a private American counsel in a foreign country, which ultimately affected the preparation and final outcome of his court-martial.  He asks the Board to consider:

* the tragic death of his brother
* his wife's affair/adultery with a platoon sergeant
* alcohol abuse
* serving in a foreign country
* extended periods of field duty
* former mental and physical abuse by his father
* he served prison time
* he lost custody and visitation rights for his son
* he lost his military career hopes
* he lost all veteran's benefits
* he lost his right to vote
* his dishonorable discharge continues to blemish his record

3.  The applicant provides

* His resume
* 
A letter from a clinical director, dated 22 October 2009
* A letter from a church administrator, dated 21 May 2008, which confirms the applicant completed a 9-week rehabilitation course of instruction
* A letter from his recovery program sponsor, dated 24 November 2009, who states the applicant is now working the 12 steps of that recovery program
* A certificate showing the applicant completed a Transformation Program

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 military records show that he enlisted in the Regular Army on 5 May 1981 and he was awarded military occupational specialty 05C (radio teletype operator).

3.  General Court-Martial Order Number 52 shows the applicant had court-martial charges preferred against him for on or about 7 July 1982, committing an assault upon his 9-month old son by striking him in the stomach area with an unknown object, a means likely to produce grievous bodily harm and thereby intentionally inflicting grievous bodily harm upon him, to wit:  a ruptured stomach.
 
4.  On 29 September 1982, the applicant was convicted by a general court-martial, contrary to his plea, of on or about 7 July 1982, committing an assault upon his 9-month old son by striking him in the stomach area with a means likely to produce grievous bodily harm, to wit:  an unknown object.  He was sentenced to reduction to the rank/grade of private (PV1)/E-1, confinement at hard labor for 2 years, and a dishonorable discharge.

5.  On 13 May 1985, the court-martial's findings of guilty and sentence was affirmed by the United States Army Court of Military Review.

6.  On 19 November 1985, the applicant's court-martial sentence was ordered to be duly executed.

7.  On 10 December 1985, the applicant was given a dishonorable discharge.

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  Sticking one's 9 month old child with an unknown object with such force to cause the child's stomach to rupture is grievous misconduct and warranted a dishonorable discharge.

2.  The applicant has not submitted any evidence to show his brother died, his wife was having an affair or committed adultery with a platoon sergeant, was mentally and physically abused by his father, or had a problem with alcohol at the time of his offense.  However, even if he had, these circumstances would not form a basis to grant his request.  The Army provides Soldiers the means to address such problems.  The applicant's decision not to avail himself of these tools was his decision.

3.  Many Soldiers serve in a foreign country and serve extended periods of field duty without committing misconduct.  As such, these factors are not mitigating in the applicant's discharge.

4.  As for the fact that the applicant served prison time, lost custody and visitation rights of his son, lost his military career hopes, lost all veteran's benefits, and his dishonorable discharge continues to blemish his record, these are all direct results of his own misconduct.

5.  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.



      _______ _   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)                                         AR20090021583



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ABCMR Record of Proceedings (cont)                                         AR20090021583



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