MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  22 March 2000 
	DOCKET NUMBER:   AR1999028523

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ted S. Kanamine		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Through counsel, reinstatement on active duty in the Regular Army (RA) in the rank of sergeant (SGT).

COUNSEL CONTENDS:  In a detailed brief, in effect, that the applicant, after compiling a spotless record of RA service covering 14 years, was convicted by special court-martial, reduced in rank and separated from active service because of his use of corporal punishment by spanking his delinquent, out-of-control, teenaged (age14) daughter as a method of administering discipline to her.  Counsel states that in the wake of his daughter’s unacceptable behavior including drug abuse, repeated truancy, frequent curfew violations, and highly promiscuous behavior while living in Delaware with her mother, his ex-wife; and that in April 1994, he agreed to take over custody and assume day-to-day parental responsibilities within his family in Germany.  Counsel further states that upon his daughter’s arrival into the family unit, he established the rules of decorum however, while he was absent from the home, deployed with his unit on a field training exercise (FTX), his daughter violated these rules by disrespecting his current spouse, her stepmother, violating curfew, engaging in sexual activity with a soldier, and abusing alcohol.  Counsel also states that prior to this incident, he had previously disciplined her by using other non-physical methods of punishment according to the severity of her offenses which included at least, verbal admonishment to suspension of social privileges, at most.  However, he informed her that upon his return from the FTX, he was going to whip her for her conduct and behavior and did so with an electrical extension cord.  He also attempted to trick her into better behavior by having her pack her bags, loading them into the family vehicle, feigning a visit to the military police, and then feigning a trip to the airport for her return to her mother in Delaware.  Counsel states that this trick seemed to work but only for a short while.  Counsel goes on to state that his career status rapidly deteriorated shortly thereafter when his daughter related these events to several classmates who, in-turn, told the school nurse, who, then, after conducting an interview and examination of his daughter, filed an official report of child abuse with military authorities.  Following a formal investigation, he was referred to a special court-martial, subsequently convicted, reduced in rank, and separated from service.  Counsel adds that the chain of command ignored the investigating officer’s recommendation that no action be taken against him above the summary court-martial level.

Counsel argues that he tried all forms of discipline which proved unsuccessful and this was a final attempt to get her attention.  Counsel further argues that sound reasons exist for granting his request for reinstatement.  These reasons included supporting statements from family and co-workers attesting to his good character; a statement from his daughter, her sworn testimony and her letters to others indicating that his punishment was too harsh and her actions were a deliberate effort to get attention and gain sympathy for her return to Delaware; and a statement from the social work service clinical director attesting that he accepted responsibility for his actions, that he was deeply devoted to his family, that he made substantial sacrifices on his daughter’s behalf, and that this case deserved clemency.

Counsel mentioned a similar case involving an Air Force NCO whose counsel queried the court members and asked if any member had ever been spanked.  The members responses were nearly unanimous in their admission that they had been spanked, some even severely with belts and one with an electrical cord as in this case.  The sentence in that case included a reprimand, a two-stripe reduction, and a two-month restriction to base.  There was no loss of career as in this case. Counsel also addressed several expert theories that supported the use of corporal punishment as a means to respond to willful defiance and connect behavior to consequences, the failure of the latter, described by one authority, as a serious casualty in a permissive society.  Counsel reiterated that he was relying, instinctively, on his own upbringing and believed that his choice of discipline was simply a response to his daughter’s willful defiance and not a malicious act of hostility that deserved such a severe repercussion. 

In support of his request, the applicant provided a number of documents as indicated on the accompanying attachment list.  He also submitted a copy of a polygraph examination.

EVIDENCE OF RECORD:  The applicant's available military records show:

He initially enlisted in the RA under the delayed entry program and entered active duty on 15 September 1981 for a period of 4 years.  He completed his initial training in the signal career management field (CMF 31) and successfully completed assignments at Fort Polk, Louisiana, Fort Hood, Texas and two tours in Germany.  He was promoted to his highest held rank of sergeant (SGT E-5) on 5 January 1988.  He had three subsequent reenlistments on 20 November 1985, 6 April 1990, and 22 July 1994.  

On 29 September 1993, he requested government travel for his daughter from Delaware to Germany.  A memorandum dated 6 March 1995, indicated that he was authorized advance return of his daughter from Germany to Delaware with an effective date of travel on 17 March 1995. 

A copy of the complete record of proceedings of his special court-martial was not available in his records.  He provided a copy of an extract of court-martial testimony from his daughter.  She stated, in effect and in pertinent, that on or about 26 January 1996, she rode around the community on the shuttle bus; that later in the day, a soldier, whom she had only met for the first time earlier in the day, offered her alcohol and engaged in sexual activity with her; and that she missed her curfew by returning home after midnight.  She further stated when her father returned home from the FTX, he asked her to remove her clothing except for her underwear and socks and then started hitting her but stopped; that he later, beat her with an extension cord 5 to 7 times; that she was bleeding through her clothes; that she believed she should have been punished for actions but not by beating; that a doctor told her that he could have punished her differently; and that while previously stationed at Fort Hood, he beat her with his Army belt.  

She also stated that once after getting in trouble, he knocked her down with his hand and hit her on the wrist with an umbrella.

Court-martial order number 13 dated 2 November 1995, indicated that on 10 August 1995, he pled not guilty and was found not guilty of the charge of assault with a means likely to produce death or grievous bodily harm however, he was found guilty of a lesser charge of assault and battery consummated on a child under the age of 16 years by repeated blows on the arms, back and legs with two extension cords on or about 26 January to 8 February 1995.  He was sentenced to reduction to specialist (SPC E-4). 

A copy of the social work service clinical director’s statement dated 16 October 1995, indicated that on 25 September 1995, the applicant satisfactorily completed the treatment plan recommended by the family advocacy case management team (FACMT); that he and his family made substantial efforts and sacrifices on behalf of his adolescent daughter who was “acting out” and allegedly involved in delinquency activities of concern to the community; and that family efforts toward reconciliation and family therapy were rendered ineffective in the face of the court-martial.  The clinical director recommended clemency based on his extensive involvement with the case through FACMT and as an expert witness at the court-martial.  There was nothing in his available records to show the specific details of a treatment plan or if such a plan was completed. Also, there was no evidence of any prior professional counseling or other professional assistance for his daughter. 

A DA Form 4187 shows that on 19 March 1996, his unit commander recommended his involuntary separation due to his retention control point (RCP) exceeding the authorized limit of 10 years active service for his rank of SPC.  

Army Regulation (AR) 601-280 pertains to the Army Retention Program.  Chapter 
3 states, in pertinent part, that except for soldiers serving under indefinite reenlistments, soldiers who reach their RCP during their current enlistment agreement, either through length of service, reduction in rank, or by removal from the promotion list, whether voluntary or involuntary, may serve until contracted expiration term of service (ETS), unless they are separated earlier under applicable administrative, physical disability, or UCMJ separation provisions.  Soldiers in this category who are eligible may apply for retirement.

Except for the DA Form 4187, there was no documentation pertaining to notification, acknowledgement, and approval of the discharge contained in his available records.

His DD Form 214, separation document, indicated that he was separated with an Honorable Discharge Certificate on 25 June 1996, under the provisions of Army regulation 635-200, Chapter 16, reduction in force, after completing 14 years, 
11 months and 3 days of creditable service.  He also received $17,737.31 in separation 

pay and reentry 3 applied.  A complete copy of his separation packet was not available in his records.

AR 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  The service of personnel separated under this paragraph will be characterized as honorable.

AR 601-210 sets forth the basic authority for the RA and USAR Enlistment Program.  Chapter 3 prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes.  Table 3-6 of the regulation, in effect at the time, states that RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of AR 635-200.

A polygraph examination indicated that he answered “no” to questions regarding his whipping or beating his daughter more than once and striking her more than once while in Germany.  The examiner concluded that his responses were truthful. 

Except for the school principal’s letter attesting to his daughter’s delinquency in Delaware, the other accompanying documents were letters of support that attested to his good character and recommended, in effect, that his career be restored. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board rejects counsel’s contention that he exhausted all other means of discipline.  The evidence of record indicates that he was aware of his daughter’s past delinquency and disciplinary problems however, there is no evidence that he sought professional counseling or other assistance for his daughter that was available to him through his military community social work services agency.

2.  Despite the absence of a report of investigation that would show detailed information concerning the facts and circumstances surrounding the incident of child abuse as well as a complete record of special court-martial proceedings, the evidence of record and limited evidence provided by him strongly suggests that his use of corporal punishment was excessive therefore, the Board presumes that the special court-martial convening authority found him guilty of a lesser charge of assault and battery upon a child under the age of 16 for this reason.

3.  Since his sentence, reduction to SPC E-4, placed him in the category of exceeding the retention control point of 10 years for soldiers in the rank of SPC E-4, his chain of command had no choice but to initiate separation proceedings for which the Board finds no error or injustice.

4.  In the absence of a complete record of separation proceedings, the Board presumes administrative regularity in the processing of his separation that appears accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  The Board recognizes his desire to return to military service.  Since the bar to reenlistment is a waivable disqualification to reenlistment, he should seek the assistance of his local recruiter for the preparation of a waiver application for Regular Army or Reserve Component reenlistment.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  __AO___  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_JA____  ________  __TK___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028523	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000322	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19960625	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	REDUCTION IN FORCE	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.