BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20130000822 


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, his narrative reason for separation be changed from "Misconduct (Serious Offense)."

2.  The applicant states:

* his narrative reason was listed as "misconduct (serious offense)" at the time due to erroneous criminal charges of two separate felonious assaults
* due to the serious nature of the alleged offense, the narrative reason was warranted
* since that time, it was agreed upon by all parties involved that this was a gross exaggeration of the truth
* as a result, the courts saw fit to reduce the first felonious assault to a misdemeanor and completely dismiss the additional  felonious assault charge
*	this decision more accurately represents the course of events that led to 
	his separation from action 

3.  The applicant provides two judgments entered by the Court of Common Pleas, Hamilton County, Ohio. 




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 August 2007.  He completed training and was awarded military occupational specialty 11B (Infantryman).

2.  Police records show that on or about 10 April 2010, the applicant and three other people went to a homeless encampment in Ohio:

* found a male victim and knocked his tent over
* beat the male victim in the head, face, arms, torso, and back causing serious injury

*	the male victim suffered two large cuts and bruises to his head, large bruising on his arms, torso, legs, and a fractured facial bone
*	the male victim did not know the applicant or the others, nor the reason for their actions

* a warrant was issued for the applicant's arrest

3.  On 28 April 2010, the applicant was arrested by the Fayetteville North Carolina Police Department for charges of assault.

4.  On 11 May 2010, the applicant was notified of his immediate commander's intent to initiate separation action against him in accordance with paragraph 
14-12c, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for commission of a serious offense.  The commander recommended the issuance of a general discharge.

5.  On 11 May 2010, the applicant acknowledged receipt of the commander's intent to separate him.  He waived his right to consult with legal counsel and elected to continue immediately with the proceedings.

6.  On 13 May 2010, the separation authority directed that the applicant be discharged under the provisions of paragraph 14-12c, Army Regulation 635-200 with a general characterization of service based on the commission of a serious offense.  He further directed the applicant not be transferred to the Individual Ready Reserve.

7.  On 9 June 2010, the applicant was discharged accordingly; his narrative reason for separation is listed as "misconduct (serious offense)."  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 8 months, and 20 days of creditable active military service.

8.  The applicant provides Ohio court documents which show:

* on 11 October 2011, he changed his plea from "not guilty" to "guilty" of assault
* the charge of assault was reduced and his felonious assault charge was dismissed

9.  On 24 May 2012, the Army Discharge Review Board denied the applicant's request for a change of his character of service and or his narrative reason for discharge.

10.  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 included minor disciplinary infractions; a pattern of misconduct; and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  It further states the quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Characterization may be based on conduct in the civilian community.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change of his narrative reason for separation as "misconduct – serious offense" was carefully considered.

2.  His narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 14-12c of Army Regulation 
635-200 due to misconduct - commission of a serious offense.  Absent the commission of this offense there was no fundamental reason to process him for discharge.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - commission of a serious offense." 

3.  Although the court reduced the applicant's sentence after he was discharged based on a plea bargain, this does not change the circumstances that existed at the time of his discharge action.  The reason for his discharge was his serious offense.

4.  The applicant's contentions and supporting documents were noted; however, they are not sufficiently mitigating to warrant relief when compared to his offense and overall record of service.  The applicant violated the trust placed in him as a Soldier in the U.S. Army.

5.  In view of the foregoing, there is no basis upon which to grant the 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)                                         AR20130000822



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ABCMR Record of Proceedings (cont)                                         AR20130000822



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