IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110009459 


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, an upgrade of his discharge. 

2.  He states he was not given a chance regarding the incident [that led to his discharge].  He almost lost the use of his hand trying to get into his house after returning from the field.  His spouse stabbed him with a piece of glass and military police did nothing to her; therefore, justice was not served.  He served his country 6 years and he would have served longer if the incident had not occurred; thus, he believes he should be entitled to the benefits he would be entitled to if he had served until he was ready to leave.

3.  He provides no additional evidence. 

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 on 25 June 1975 and reenlisted on 30 October 1979.  

3.  A DA Form 3975 (Military Police Report) shows the Hanau Military Police (MP) Station received a complaint of destruction of private property against the applicant.  The report shows an investigation revealed that at approximately 0125 hours on 11 July 1979 the applicant attempted to forcibly gain entrance to his wife's apartment by breaking a pane of glass in the doorway entrance which was locked.  According to German legal documents in the possession of his wife, he was forbidden to enter the residence and divorce proceedings were pending.  He received lacerations of the right wrist when he broke the glass in the door and he was charged with destruction of private property. 

4.  A DA Form 3975-1 (Commander's Report of Disciplinary Action Taken) shows that following an incident on 11 July 1979 his commander counseled him on properly managing his personal affairs and advised him to replace a window pane.  

5.  A DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 15 September 1980, shows the applicant sustained a laceration of his right forearm with tendon and artery involvement on 11 July 1979 while attempting to forcibly gain entrance to his wife's apartment.  The applicant stated he was stabbed by his wife, but the approved findings show his injury was found to be not in the line of duty and sustained due to his own misconduct.  He appealed the findings and his appeal was denied.

6.  A DA Form 3975 shows, on 30 August 1980, German Police notified the Hanau MP Station that the applicant struck his wife in the face and left leg with an umbrella and his fist.  When German Police arrived on the scene, his wife relinquished an undetermined amount of greenish brown vegetable matter and stated it belonged to the applicant.  His wife was transported to a medical facility where she was treated for a punctured left ear drum and bruises on her forehead, nose, and left leg.  The applicant was apprehended and transported to the Hanau MP Station where he was advised of the nature of the charges against him and his legal rights.  A field test of the vegetable substance returned positive for the presence of marijuana.  The applicant was processed and released to his unit.  An MP investigator contacted an officer at the Hanau Legal Center who opined that the applicant's actions were sufficient to warrant charges of aggravated assault.

7.  On 4 November 1980, a Physical Evaluation Board (PEB) convened to consider the applicant's physical fitness for continued service.  The PEB found him unfit based on his diagnosis of lacerated extensor tendons right long and ring fingers, dominant hand with chronic residuals of pain, stiffness, and reflex sympathetic dystrophy, moderately severe.  The PEB rated his condition as 20 percent disabling, and recommended he be separated from the service with severance pay if otherwise qualified.  The PEB noted that in the absence of an approved line of duty report, the case had been processed as if a favorable line of duty determination had been made.  On 17 November 1980, he indicated he did not agree with the PEB recommendations but did not desire to submit a rebuttal.

8.  A message, dated 8 July 1981, shows the U.S. Army Military Personnel Center (MILPERCEN) directed the applicant's discharge under the provisions of Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(6), provided the provisions of Army Regulation 600-31 (Suspension of Favorable Actions for Military Personnel in National Security Cases and Other Investigations or Proceedings) were not applicable.

9.  The complete facts and circumstances of the applicant's discharge processing are not included in the available records.  However, the DD Form 214 (Certificate of Release or Discharge from Active Duty) in his record shows he was discharged on 5 August 1981 under the provisions of Army Regulation 635-200, chapter 10.  Item 24 (Character of Service) shows the entry "under conditions other than honorable," and item 28 (Narrative Reason for Separation) shows he received an administrative discharge for conduct triable by court-martial.  

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  

	a.  Paragraph 4-24e(6) of the version in effect at the time provided that the Commanding General, MILPERCEN, would issue retirement orders or other disposition instructions to separate an individual for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence.

	b.  The version in effect at the time also provided that a member who was charged with an offense, or under investigation for an offense that could result in dismissal or punitive discharge, could not be referred for disability processing.

12.  Army Regulation 600-31, in effect at the time, prescribed policies and procedures to prevent favorable personnel actions from being initiated or completed when such actions would not serve the best interests of the U.S. Army.  The regulation stated favorable personnel actions would be suspended for members against whom action was initiated that could result in dismissal, discharge, court-martial, nonjudicial punishment, reduction in grade or written admonition, reprimand, or censure.

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

	a.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides that an honorable discharge (HD) 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.

   c.  Paragraph 3-7b provides that a general discharge (GD) 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.  The evidence of record does not support the applicant's request for an upgrade of his discharge.  

2.  He was investigated twice for incidents involving his estranged wife.  He was injured during the first incident on 11 July 1979, which led to him being processed for separation for disability.  Prior to completion of that process, on 30 August 1980, he was apprehended on a charge of aggravated assault against his wife.  

3.  Although the record is incomplete, it appears he was formally charged as a result of the second incident (which would have halted the processing of his separation for disability) and he voluntarily requested discharge in lieu of trial by court-martial.  In the absence of documentary evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  His voluntary request for discharge in lieu of trial by court-martial would have included his admission of guilt to an offense that authorized the imposition of a bad conduct or dishonorable discharge.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD or an HD.  

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)                                         AR20110009459



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ABCMR Record of Proceedings (cont)                                         AR20110009459



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