MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            7 July 1999
	DOCKET NUMBER:   AR1999018291

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Meta Waller		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 discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That his discharge is unjust because more than 20 years have past and justice has been served.  He further states that since his discharge he has obtained a bachelor of science degree from Sam Houston State University.

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

On 13 March 1975, he enlisted in the Army for 4 years in the pay grade of E-1.  He successfully completed his training as an infantryman and on 13 July 1975, he was promoted to the pay grade of E-2.

Nonjudicial punishment (NJP) was imposed against the applicant on 16 December 1975, for failure to obey a lawful order.  His punishment consisted of a forfeiture of pay and extra duty.

The available records show that on 18 January 1976, while on leave, the applicant failed to return in a timely manner and he was charged with 1 day of AWOL.  The records are void of any imposition of punishment for his being AWOL.

On 11 May 1976, NJP was imposed against him for failure to obey a lawful order. His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 1 December 1976, the applicant was arrested by civil authorities and charged with rape and kidnapping.  He accepted a plea bargain which resulted in his being convicted of lesser charges (misdemeanors).  He sentence consisted of incarceration in the Monterrey County Jail in Salinas, California, for 227 days and 36 months of probation.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge, DD Form 214, indicates that the applicant was discharged under other than honorable conditions on 9 May 1977, under the provisions of Army Regulation 635-206, for misconduct – conviction by civil authorities.  He had 1 year, 8 months and 25 days of total active service and he had 152 days lost due to AWOL and confinement.

The available records show that on 14 February 1984, the applicant was convicted of aggravated robbery and he is presently serving a 50-year sentence in Huntsville, Texas.

There is no evidence that the applicant applied to the Army Discharge Review for an upgrade of his discharge within its 15-year statute of limitation.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  A discharge under other than honorable conditions was normally considered appropriate.

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 the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record of service.

2.  The contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The applicant is presently incarcerated in Huntsville, Texas for committing robbery.  That in itself is a reflection of his post-service conduct.

3.  The fact that it has been over 22 years since his discharge from the Army is not a basis for granting the relief requested.

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 the aforementioned 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

___jea  __  ___mlw__  __inw___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018291	
SUFFIX		
RECON		
DATE BOARDED	1999/07/07	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/05/09	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	626	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	A61.00/Conviction by civil authorities	
2.		
3.		
4.		
5.		
6.