IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110015351 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, his discharge was unjust because the incident that put into motion all of the events which led to his separation was not intentional.  He attests his youngest son's leg was broken due to an argument over his former wife's infidelity and the possibility that their older son may not have been his.  He further states his younger son was crying in his crib and they went to check on him in the midst of their argument.  When he picked up his son he was very upset and did not notice his son's leg was stuck between the rails of the crib until the child began to scream loudly.  They took him to the hospital and a doctor informed them the child's leg was broken.  He was devastated by the fact his son's leg was broken due to his anger over his wife's infidelity.  He contends that aside from this incident, he never had any adverse issues in the military and his career was progressing well.  Since his discharge, he remarried, earned Associate's and Bachelor's degrees and completed a Career Readiness Course.  He concludes that he is not a bad person, both of his sons love him, and he is a proud grandfather.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).




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 24 October 1978.  He completed initial entry training and was awarded military occupational specialty 55B (Ammunition).  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.  On 2 December 1985, the applicant's personnel records were flagged in order to suspend favorable actions pending the outcome of an investigation.

4.  His record contains a DA Form 3881 (Righst warning Procedure/Waiver Certificate), dated 9 December 1985, which shows the applicant was advised of his rights under Title 10, U.S. Code, Section 3012(g) prior to being interviewed by a Special Agent (SA) from the U.S. Army Criminal Investigation Command.  The applicant waived his rights and consented to an interview

5.  His record contains a DA Form 2823 (Sworn Statement), dated 9 December 1985, wherein he essentially stated that on or about 18 November 1985 his family was together in their living room.  His infant son was in a collapsible baby walker and he was trying to get him to stand upright.  The infant's left leg was doing fine, but he was having difficulty with his right leg; which kept sagging.  The applicant was getting upset because the child would not stand up and he felt that because the child was 7 months old he should be standing.  After about 5 minutes of trying to get the child to stand, the applicant was getting frustrated.  "He kept sagging on his right leg so, I snapped it with my left hand, trying to get him to stand up on it.  When I say that I snapped it, I mean that I just jerked it real hard, trying to get him to stand up on it.  He cried out so, I stopped and pulled him up and out of the walker.  I held him while he cried, then put him back into the walker to see if he could walk.  He started crying again, as soon as he put weight on the leg....A few days later, I was changing his diaper and saw that his right leg had swollen.  We went to Giessen that day, to go shopping, and [his son] was crying on and off during the day.  I figured that he was probably crying because of his leg, but I didn't think we needed to have a doctor look at him.  The next day, maybe 20 November 1985, he was crying even more so, I took him to the dispensary at Pendleton Barracks.  They took x-rays and said that his leg was broken so, I immediately took him to the 97th General Hospital, where he was admitted for treatment."

6.  The SA then asked the applicant why he and his wife had lied to him during a previous interview and whether they had conspired about what they were and were not going to tell him.  The applicant admitted that he and his wife had conspired and that he was initially going to tell the SA the child had fallen off the couch; which he had in fact done a few days prior to the other incident.  The applicant stated the child's leg did not appear sore after falling of the couch and was probably not injured as a result of falling approximately 18 inches from the couch to the padded carpet.

7.  A DD Form 458 (Charge Sheet), dated 14 February 1986, shows court-martial charges were preferred against the applicant for:

	a.  Two specifications of violating Article 128 of the Uniform Code of Military Justice (UCMJ) by:

		(1)  committing assault upon [his son], by grabbing [his son's] right leg with his left hand and snapping the leg with such force as to fracture the right femur bone and did thereby intentionally inflicting grievous bodily harm upon [his son]; and 

		(2)  committing an assault upon [his son], a child under the age of 16 years, by grabbing [his son's] right leg with his left hand and snapping the leg with such force as to fracture the right femur bone and did thereby intentionally inflicting grievous bodily harm upon [his son].

	b.  Two specifications of violating Article 134 of the UCMJ by:

		(1)  through neglect, failing to provide adequate medical care for [his son], a child legally entrusted to his care, thereby causing serious physical harm, to wit:  pain and swelling associated with the untreated broken right femur of [his son]; and

		(2)  in a sworn statement, wrongfully and unlawfully subscribing under lawful oath a false statement in substance as follows:  that [his son] had broken his leg by falling off of the couch, which statement he did not then believe to be true.
8.  His chain of command recommended trial by General court-martial.

9.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

10.  On 26 September 1986, following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant did not submit a statement in his own behalf.

11.  His company and battalion commanders recommended approval of his request for discharge for the good of the service with the issuance of an under other than honorable conditions discharge.  The brigade commander recommended denial of the applicant's request and stated the offense warranted court-martial regardless of the outcome.

12.  On 16 October 1986, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and issuance of an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 7 November 1986, the applicant was discharged accordingly.

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

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.

16.  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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  His record shows he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  Evidence shows that during the investigation of his charges, the applicant rendered two different accounts of the incident wherein his infant son's leg was broken.  Now, nearly 26 years later, he is attesting to a totally different account of the action which led to the his son's injury.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

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)                                         AR20110015351





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ABCMR Record of Proceedings (cont)                                         AR20110015351



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