MEMORANDUM OF CONSIDERATION 

	IN THE CASE OF:       

	BOARD DATE:            18 March 2003
	DOCKET NUMBER:    AR2002076579

	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	
	Mr. Walter Avery, Jr.		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Margaret V. Thompson		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:  In effect, his reinstatement to active duty.

APPLICANT STATES:  He defers to counsel.

COUNSEL CONTENDS:  That on 11 June 2002 an administrative board recommended the applicant’s separation from the Army with a General Discharge.  The basis for that recommendation was an assault on 22 August 2001 by the applicant upon his wife and concealment of arrest records by civil authorities for two prior assaults on his wife, which resulted in false statements on his reenlistment documents submitted on 1 June 2001.  The separation board recommended that any separation of the applicant be suspended for six months. The convening authority chose to ignore this recommendation and abused its discretion by denying the recommendation.

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

He enlisted on 10 July 1990 for training as a supply specialist.  He achieved the rank of sergeant first class and served continuously until his discharge.

The applicant’s records reflect that his job performance was excellent and contains no evidence of disciplinary actions.

On 27 February 2002, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c.  The applicant failed to disclose two arrests for assault and battery against his wife on 11 July 2000 and 10 October 2000 during his reenlistment process on 1 June 2001.  In addition, he failed to disclose that on or about 22 August 2001 he again assaulted his wife.  The commander recommended the applicant’s discharge from the service based on commission of a serious offense. The applicant elected to submit a statement in his own behalf, after advisement of his rights and consultation with counsel.

On 11 June 2002, the applicant appeared before an administrative separation board.  In summary it was disclosed that he had twice been convicted for spousal abuse.  He had been placed on probation and sentenced to 25 hours of anger management training.  He falsely informed the instructor that he was being deployed and stopped going to the classes.  During this time he reenlisted and did not disclose his arrest, conviction or that he was on probation.  The applicant was involved in a third spousal abuse that involved his wife receiving a serious beating and the 12-year-old stepdaughter attacking the applicant in defense of her mother.  The last incident resulted in the disclosure of the previous events and his appearance before the board.  The separation board recommended the applicant’s separation from Army with a General Discharge Under Honorable Conditions and that the separation be suspended for six months per paragraph
1-18 of AR 635-200.
On 26 June 2002, the appropriate authority directed the discharge of the applicant with the least practical delay and that he receive a General Discharge Certificate.

Accordingly, his under honorable conditions discharge took place on 19 July 2002 under the provisions of Army Regulation 635-200, paragraph 14-12c(1) for misconduct.  His total active service credit was 12 years, 0 months and 10 days of total active service.

In the processing of this case the US Army Total Army Personnel Command (PERSCOM) provided an advisory opinion.  They concluded that although a separation board may recommend suspension, the convening authority is not bound to that suspension.  The separation authority may not increase the severity of the directed separation but is not mandated to approve a suspension of the separation.  The advisory opinion was sent to the applicant for response.  None has been forthcoming.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established the policy and prescribes procedures for separating members for various types of misconduct.  It provided that action would be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although a general discharge is authorized, a discharge under other than honorable conditions was normally considered appropriate.

Chapter 1-18 of the same regulation provides that a highly deserving soldier may be given a probation period to show successful rehabilitation before the soldier’s enlistment or obligated service expires.  The separation authority may vacate suspension of the approved action and execute separation, or continue to suspend execution of the approved separation for the remainder of the probation period.

Chapter 2-12 of the same regulation provides that the board’s recommendation of suspension is not binding on the separation authority.

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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The Board notes the applicant’s contention that the convening authority abused its discretion by not accepting the separation board’s recommendation to suspend his separation.   The fact that the separation board issues a “recommendation” is indicative that the final decision rests with another authority, in this instance the separation authority.  The separation authority was within regulatory guidance by not accepting the recommendation of a suspension.  It is also noted that the applicant was administratively separated and not subjected to nonjudicial or court-martial proceedings.

4.  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.

5.  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

___jlp__  ___mvt __  ___aao__  DENY APPLICATION

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

INDEX

CASE ID	AR2002076579	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020318	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-200/CH14	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.