MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            24 March 1999
	DOCKET NUMBER:   AR1999019421

	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. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		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.   

APPLICANT STATES:  In effect, that his discharge is no different than a dishonorable discharge.  

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

He enlisted on 13 November 1975 for a period of 3 years.  He successfully completed training and was transferred to Fort Carson, Colorado, for duty as a material supplyman.

On 3 February 1976 nonjudicial punishment (NJP) was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay and 12 days of restriction and extra duty.

NJP was imposed against the applicant on 3 January 1977 for being drunk on duty and AWOL from 30 December 1976 to 3 January 1977.  His punishment consisted of a forfeiture of pay, 14 days of extra duty and a reduction to pay grade E-2.

 He received NJP on 21 October 1977 for larceny (value of $6.75).  His punishment consisted of a forfeiture of pay.

On 14 August 1978 the applicant was convicted by special court-martial of assaulting his superior NCO by throwing him to the ground and being drunk and disorderly.  He was sentenced to be reduced to pay grade E-1, forfeit $75.00 pay per month for 2 months and to be confined at hard labor for 2 months.  The convening authority approved the sentence on 18 August 1978.

Effective 15 September 1978 the unexecuted portion of the sentence to confinement was suspended until 17 January 1979.
 
On 20 October 1978 NJP was again imposed against the applicant for disobeying a lawful order and failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay and 14 days of restriction and extra duty.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records indicate that on
11 December 1978 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 11 months and 24 days of total active service and had 35 days lost time due to AWOL and confinement.
Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 33b(1) of the regulation provided, in pertinent part, for the separation of personnel for patterns of misconduct due to frequent incidents of discreditable nature with civil or military authorities.  An under other than honorable conditions discharge 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, and it is concluded:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were in accordance with law and regulations applicable at the time. 

2.  The applicant’s contention that an under other than honorable conditions discharge is no different than a dishonorable discharge, is without merit.  The Board notes that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. With regard to a dishonorable discharge, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.  A dishonorable discharge is a punitive discharge and is considered a felony conviction.

3.  The applicant’s discharge does not warrant upgrading because the character of the discharge is commensurate with the applicant’s overall record of military service.  

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

___jev___  ___rwa__  ___alr___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999019421	
SUFFIX		
RECON		
DATE BOARDED	1999/03/24	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1978/12/11	
DISCHARGE AUTHORITY	AR635-200  	
DISCHARGE REASON	656 – FREQUENT INVOLV W/CIV OR MIL	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.000	
2.  678	A68.03/144.6803	
3.  277	126.000	
4.		
5.		
6.