MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC97-06265
                                              AR1998009864

	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. Loren G. Harrell		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Patrick Bogenberger		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Gary F. Geraets		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, that he be issued an Honorable Discharge Certificate.

APPLICANT STATES:  That his service on active duty was honorable.  Following his active duty, he was released to the USAR but never served in the reserves.  When he finished his military obligation with the USAR he should have received an Honorable Discharge Certificate as provided for in the Woods v. Secretary of Defense class action suit.  In support of his request he provides a copy of his   DD Form 214, Report of Separation from Active Duty, dated 8 January 1976.

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

He enlisted in the Regular Army for 3 years on 9 November 1972, received training as a medical specialist and was eventually promoted to pay grade E-4.  His DD Form 214, shows that he was honorably separated from active duty but not issued a discharge certificate.  He was transferred to the USAR to complete his military service obligation.

During his active duty service he accepted nonjudicial punishment under the provisions of Article 15, UCMJ on two occasions, one for 54 days AWOL and the second for 7 days AWOL, resulting in 61 days of lost time during his enlistment.

Upon completion of his term of active service on 8 January 1976, he was assigned to the USAR Control Group Reinforcement to complete his military service obligation but was not affiliated with a unit nor did he perform any duties.

Effective 15 July 1976, the USAR dropped him from the rolls of the Army due to a sentence to confinement following a civilian conviction.  Subsequent to his conviction, he corresponded with the US Army Reserve Personnel Center requesting a discharge certificate to show that he had completed his 6 year military service obligation.  His request was denied on the basis that a discharge document or certificate is not issued when an enlisted soldier has been dropped from the rolls of the Army.

Army Regulation 135-178, Separation of Enlisted Personnel, provides that soldiers who are sentenced to confinement in a federal or state penitentiary or correctional institution after having been found guilty of an offense by a civil court, and whose sentence has become final, may be dropped from the rolls of the Army.  No discharge certificate will be issued and a characterization or other description of service is not authorized or warranted.

In 1980, the United States District Court for the District of Columbia decided the case of Woods v. Secretary of Defense.  In that case the Court ruled that the armed services could discharge a reservist who was serving in a totally inactive status if a civilian court convicted the individual.  However, the Court also ruled that the member could not receive a discharge under other than honorable conditions.  In reaching the latter conclusion, the Court cited the rather tenuous bond between such service members and the armed services, and noted that convictions of these members have little impact on the services.  The Court concluded that a discharge under other than honorable conditions could only be based on conduct directly affecting the performance of military duties.  A general discharge could be issued only if the conduct had an impact on the overall effectiveness of the military, including morale and efficiency.  In this regard, the duty of an inactive reservist to maintain availability for call-up in an emergency was held to be an inadequate nexus between civilian misconduct and the military.

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 release from active duty was characterized as honorable.  Since he had not completed his military service obligation, however, he was not issued a discharge certificate, but was transferred to the USAR to complete his obligation.

2.  Shortly after his reassignment to the USAR, and while he was an inactive member, he was convicted by a civilian court and dropped from the rolls of the Army.  Since he was never a participating member of the USAR he was not entitled to a discharge certificate.

3.  The provisions of Woods v. the Secretary of Defense are not applicable in this case.  That decision concerns attempts to change the character of an individual’s discharge based upon his/her conduct while assigned to the inactive USAR.  No such effort was made in the applicant’s case.  His request for a discharge certificate was properly denied because he had been dropped from the roles of the Army, thus, without USAR status, no discharge certificate or characterization of service was warranted.

4.  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

_PB_____  _EJA____  _GFG___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-06265/AR1998009864	
SUFFIX		
RECON		
DATE BOARDED	19990210	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR.  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A61.00	
2.		
3.		
4.		
5.		
6.