MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           25 March 1999
	DOCKET NUMBER:   AR1999018138

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret  K. Patterson		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Lester Echols		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 his discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES:  In effect, that he was discharged due to civilian incarceration and not due to any military misconduct or court-martial sanction or punishment.  He also states that at the time of his discharge he was not informed of the 15-year statute of limitations policy for an upgrade of his discharge.  In support of his application he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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

The applicant entered active duty on 6 October 1977 and served as a light weapons infantryman.

Beginning in May 1978, the applicant received several nonjudicial punishments
(NJP) and a summary court-martial for instances of disrespect toward his superior commissioned officer, disobeying a lawful order, failure to go to his appointed place of duty, larceny, possession of marijuana, and AWOL.

Beginning on 8 December 1978 he embarked on a series of AWOL’s totaling approximately 238 days.  

On 28 February 1980 the applicant went AWOL and remained AWOL until he was apprehended by civil authorities in Billerica, Massachusetts, on 28 April 
1980 and was charged with armed robbery with intent to murder/assault and battery by means of a dangerous weapon.

He was convicted by civil authorities and sentenced to 10 years to be served concurrently on each conviction on 27 October 1980 at Massachusetts Correctional Institution, West Concord, MA.

On 9 January 1981, the applicant was notified by his commander that he was being considered for separation under the provisions of Army Regulation 
635-200 chapter 14, due to his civil court conviction.  

After consulting with counsel, he waived consideration of his case by a board of officers and representation by counsel.  He also acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration if a discharge under other than honorable conditions were issued.  

He elected to submit a statement on his behalf in which he requested that the commander make a fair and speedy decision in his case.  He also stated that his overall service should be taken into consideration, that he performed his duty and that he had good potential as a soldier.  He further stated that he deeply regretted his actions and that he be considered for a general discharge.

On 27 January 1981, the commander submitted his recommendation to eliminate the applicant for separation from the service under the provisions of Army Regulation 635-200, chapter 14, based on his conviction by civil court.

On 3 March 1981, the separation authority approved the recommendation for discharge and directed that he be furnished an Other Than Honorable Discharge Certificate.  The applicant was discharged on 1 April 1981.  He had a total of 
1 year, 7 months, 19 days of creditable service and had approximately 662 days of lost time due to AWOL and confinement. 

The applicant applied to the Army Discharge Review Board (ADRB) on 26 April 1998 for an upgrade of his discharge.  However, that board was precluded from accepting his application due to its statute of limitations (15 years).

Army regulation 635-200 sets for 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, patterns 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.  

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 was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits.

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

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The Board noted the applicant’s contention that he was discharged due to civilian incarceration and not due to military misconduct or court-martial sanction or punishment.  However, the Board noted the applicant’s extensive record of AWOL and numerous other infractions of military order as well as his civil offenses.  In view of these serious offenses and his undistinguished record of service, the Board determined that he was properly discharged and there was no inequity or injustice which warranted upgrading 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 the aforementioned 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

MKP____  EJA_____  LE_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018138	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990325	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810401	
DISCHARGE AUTHORITY	AR635-200         	
DISCHARGE REASON	Misconduct – Conviction by Civil Court	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.