IN THE CASE OF: BOARD DATE: 19 July 2011 DOCKET NUMBER: AR20110001677 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 an honorable discharge. 2. The applicant states he was the victim of an estranged wife who was attempting to sabotage a young Soldier's career. He contends that the basis for his discharge was rooted on false allegations of mutual spouse abuse. 3. The applicant provides a portion of his separation packet. 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 28 March 1989. He completed training and was awarded military occupational specialty 77F (Petroleum Supply Specialist). He was honorably discharged on 29 December 1991 and immediately reenlisted for 3 years on 30 December 1991. 3. His Official Military Personnel File contains several DA Forms 4856 (General Counseling Form) that indicate he was counseled on numerous occasions during the period 12 February - 15 July 1992 for infractions that include failure to be at his appointed place of duty, failure to prepare, and disobeying a lawful order. 4. Memoranda, dated 15 September 1992, 22 October 1992, and 30 December 1992, indicate the Fort Bragg, NC, Family Advocacy Case Management Team (FACMT) received referrals of abuse involving the applicant's spouse. The applicant was identified as the perpetrator in one incident and two incidents involved mutual abuse. The FACMT investigated the reports and found the reports to be substantiated. 5. A memorandum from the Womack Army Medical Center, Fort Bragg, dated 7 January 1993, also indicate the Cumberland County Department of Social Services substantiated child neglect involving the applicant's 8-month old daughter. 6. On 13 January 1993, the applicant was advised by his unit commander that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c for commission of a serious offense with a General Discharge Certificate. The reasons cited for the proposed separation action were his involvement in two incidents of assault/domestic disturbance and that he reported for work late on several occasions. He was also advised of his right to: * consult with legal counsel or with civilian counsel at his own expense * submit statements in his own behalf * obtain copies of documents that would be sent to the separation authority that supported the proposed separation action * waive his rights in writing 7. He consulted with counsel and elected not to submit statements in his own behalf. He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. He acknowledged he understood that if he received General Discharge Certificate, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded. 8. On 26 January 1993, the appropriate separation authority approved the recommendation and directed the issuance of a General Discharge Certificate. On 18 February 1993, he was discharged accordingly. Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "Misconduct - Commissioned of a Serious Offense." 9. There is no evidence that indicates he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations. 10. Army Regulation 635-200 (Personnel Separations) 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 11. Army Regulation 635-200, 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's contends his discharge should be upgraded due to false allegations of mutual spouse abuse. However, he failed to provide evidence that substantiates his claim. 2. His record of indiscipline includes three instances of substantiated spousal abuse and several negative counseling statements. Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel. This record of misconduct also rendered his service unsatisfactory. Therefore, he is not entitled to an honorable discharge. 3. The available evidence also confirms his separation processing was accomplished in accordance with the applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 4. In view of the foregoing, there is no basis for granting the applicant's 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) AR20110001677 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110001677 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1