MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           29 August 2002                  
	DOCKET NUMBER:   AR2002073313

	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. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. Oberg 		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:  That his general discharge be upgraded to honorable.

APPLICANT STATES:  That he was a good soldier and it was his personal life that got him discharged.  

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

He enlisted in the Regular Army as a private, pay grade E-1, on 22 February 1980.

He completed his basic and advance training and was awarded military occupational specialty 11B20, Infantryman.

He was advanced to sergeant, pay grade E-5, effective 1 April 1984 with a date of rank of 3 March 1984.

On 10 July 1984, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit from 2 July to 3 July 1984.  His punishment included reduction to pay grade E-4 (suspended until 10 January 1985), forfeiture of pay for 2 months (suspended until 10 January 1985), restriction for 40 days and extra duty for 30 days.

He was counseled for spouse abuse.  His command worked with the applicant and his problem and the applicant was transferred to another unit in an attempt at rehabilitation.

On 24 August 1984, the applicant’s commander initiated action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for Misconduct-Spouse Abuse.  The commander stated that the specific reason for the discharge was spouse abuse.  

On the same date, the applicant acknowledged receipt of the proposed discharge action.  Through counsel he elected not to submit a statement in his own behalf.  The applicant also acknowledged the rights available to him, the effect of any action taken by him waiving his rights and what he may expect as the result of issuance of a discharge under other than honorable conditions.

On 12 September 1984, the appropriate authority approved his discharge, changed his separation to misconduct – pattern of misconduct and waived a rehabilitative transfer.  

He was separated on 25 September 1984 in pay grade E-5 under the provisions of Army Regulation 635-200, chapter 14 for misconduct – pattern of misconduct. He was issued a General Discharge Certificate.  He was credited with 4 years, 7 months and 3 days total active service.

On 4 January 1988, the Army Discharge Review Board denied his request for an upgrade of his discharge.

He enlisted in the Ohio Army National Guard (OH ARNG) on 10 July 1987 with a waiver, for 6 years, in pay grade E-5.  He enlisted for the Student Loan Repayment program.

On 7-8 October, 4-5 November, and 2-3 December 1989, he had unexcused absences.  He was notified but did not respond.  

On 10 May 1988, action was initiated to deny the applicant’s security clearance.  It was disclosed that the applicant has been charged by the military police for drunk driving, being involved in a traffic accident and fleeing the scene.  For this offense, he was fined one-week pay and his driver’s license was revoked for 1 year.  It was also disclosed that the records of the Harker Heights Police Department indicated that the applicant was arrested on 1 July 1984 for simple assault after hitting his spouse on the face and hand.  On 13 August 1984, he was again arrested for assault with bodily harm injury.  The applicant struck his wife repeatedly in the face, bruising her eyes and scraping her forehead and chin.  The applicant did not acknowledge receipt of this action.

He was discharged on 1 April 1990 from the OH ARNG for unsatisfactory participation, with a general, under honorable conditions character of service.  He was transferred to the USAR Control Group (Reinforcement) for completion of his service obligation.

He was honorably discharged from the Reserve effective 13 July 1993.

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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

Paragraph 3-7 of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board’s notes the applicant’s contentions that his personal life got him discharged.  The Board agrees.  His misconduct of spousal abuse is a serious offense in the military environment and cannot be tolerated.  He was properly recommended for discharge for this misconduct, and properly discharged from the Regular Army and the OH ARNG.  

3.  The Board also notes that the applicant’s command attempted to assist the applicant extensively and his own misconduct was the reason for his discharge.  He appeared to have been unconcerned about his future in the service.  The approving authority granted the applicant leniency upon his discharge from the Regular Army when his reason for separation was changed from misconduct-spouse abuse to misconduct-pattern of misconduct.  

4.  While the Board is empathetic, the applicant's pleadings are not sufficiently mitigating to warrant an upgrade of his discharge.

5.  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 this requirement.

6.  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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_HBO____  _MKP___  _CJP___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002073313	
SUFFIX		
RECON		
DATE BOARDED	20020829	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.