IN THE CASE OF:  	  

		BOARD DATE:  10 March 2015	  

		DOCKET NUMBER:  AR20140011754 


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 an upgrade of his general discharge to honorable.

2.  The applicant states:

* his first sergeant didn't like him or other Hispanics
* he was singled out
* he was a good Soldier

3.  The applicant 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 16 March 1988 for 4 years.  He completed his training and was awarded military occupational specialty (MOS) 43E (parachute rigger) and MOS 13B (cannon crewmember).  On 6 February 1991, he was honorably discharged for immediate reenlistment.  He reenlisted on 7 February 1991 for 4 years.

3.  The applicant's records show:

* he was physically abusive to his wife on 30 July 1992
* he completed the Domestic Conflict Containment Program in October 1992
* in September 1993, the Fort Campbell Advocacy Case Management Team received a second report of spouse abuse involving him
* in October 1993, the applicant failed to progress in treatment by committing a subsequent act of spouse abuse

4.  On 3 December 1993, he was notified of his pending separation for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense.  The unit commander cited the physical abuse of his spouse in July 1992 and September 1993 as the basis for separation.

5.  On 8 December 1993, he consulted with counsel.  He also acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he had a physical altercation with his wife in September 1993 and he is deeply sorry
* he was wrong
* a lot of things were going wrong at the time
* he was under a lot of stress
* his wife had post-partum depression after the birth of their son
* he and his wife were trying to work things out

6.  On 15 December 1993, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

7.  On 21 December 1993, he was discharged under honorable conditions (general) for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 5 years, 9 months, and 6 days of creditable active service.

8.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his first sergeant didn't like him or other Hispanics.  However, there is no evidence of record and he provided no evidence showing he was the victim of racial discrimination.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  Since a discharge under other than honorable conditions is normally appropriate for the authority and reason for his discharge, the fact that he was given a general discharge under honorable conditions was generous.

4.  His record of service during his last enlistment included three reported incidents of domestic violence against his spouse.  As a result, his record of service was not so meritorious as to warrant an honorable discharge.



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 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)                                         AR20140011754



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ABCMR Record of Proceedings (cont)                                         AR20140011754



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