MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 July 1999                   
	DOCKET NUMBER:   AR1999020299

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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 the discharge for his last period of service be changed to honorable, that his prior service be correctly computed, that his Vietnam medal be awarded back to him, and that his military specialties be correctly reflected on his final DD Form 214 (report of separation).

APPLICANT STATES:  That if he would have had the proof of his prior service he would have enlisted with prior service benefits, made promotion to grade E-7 by 1991, and that he also would have requested early retirement in 1992 when he had 15 years service if given the opportunity.  He gave his superiors 150 percent all the time until his separation.

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

He enlisted and entered active duty on 28 January 1982.  His enlistment documents, which he signed, state that he was a non-prior service enlistee with the “NO” block checked concerning his having ever served in the armed forces.  His only employment is listed as January 1979 to April 1981 as a bookkeeper and accountant.

During this enlistment he was trained as a radio operator and served over 6 years in that specialty.  He was also assigned as a supply specialist for 2 years.  He was promoted to grade E-6 effective 22 February 1988.

In October 1992 the applicant was charged with attempted child molestation in the second degree by the state of Washington.  He pleaded guilty and was sentenced to a fine and also served 20 days in jail.

On 1 July 1993 the applicant acknowledged notification of contemplated separation for misconduct.  After consulting with counsel the applicant requested to appear before a board of officers and declined to submit a statement on his behalf.  The board of officers convened on 12 August 1993 with the applicant present.  During testimony he stated that he was primarily a radio operator with supply as a secondary skill.

After reviewing the evidence presented and hearing testimony from the command and the applicant the board of officers found that he was guilty of the offense and recommended he be separated with a general discharge.  The board proceedings were reviewed and found legally sufficient and in compliance with procedural requirements to include the required protections of the applicant.

The separation authority, a lieutenant general, approved the findings and recommendations and directed separation with a general discharge.  Effective 1 October 1993 the applicant was separated for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c.  His DD Form 214 shows that he had 11 Years, 7 months, and 14 Days creditable service and 20 days lost time.
The applicant’s final DD Form 214 shows his primary skill as a radio operator with a secondary skill as supply.  It does not show any prior active service or any Vietnam era awards.  There is no evidence of record that he was ever eligible for or requested early retirement authority.

On 29 April 1998 the Army Discharge Review Board, in a unanimous decision, voted to deny the applicant an upgrade of his general discharge.  It was noted in the decision that the applicant’s service was not consistent with the Army’s standard of acceptable conduct and that the discharge was both proper and equitable.

Army Regulation 601-210 provides the procedures for enlistment in the Army.  It provides, in pertinent part, that applicant’s for enlistment who claim to have prior service will not be enlisted in the Army until their prior service is determined.  It also states that prior service personnel must meet basic eligibility requirements including an honorable period of prior service and a qualifying or waivable reenlistment code.

Army Regulation 635-200 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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

Also in the available record are records for the applicant’s prior service, including two DD Forms 214.  This record shows that he served on active duty for 4 years, 5 months, and 1 day from 10 March 1969 to 16 November 1973 as a petroleum supply specialist and a cook.  He had been discharged in grade E-1 under other than honorable conditions in lieu of trial by court-martial for an extended AWOL period.  On 10 November 1980 the Army Discharge Review Board upgraded his discharge to general under honorable conditions.  His final DD Form 214 shows all of his authorized Vietnam service awards.

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 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.

2.  The contentions of the applicant and his counsel have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized based on the seriousness of the offense.

3.  Since there is no basis to change the reason or authority of his separation there is likewise no basis to consider the issue of early retirement authority.  His Vietnam era DD Form 214 shows his authorized Vietnam era awards and his final DD Form 214 shows the correct military skills he served in for that period of service.

4.  NOTE:  His final DD Form 214 will be administratively corrected to show his prior service.

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

__chl___  __slp___  __clg___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020299	
SUFFIX		
RECON		
DATE BOARDED	19990729	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19931001	
DISCHARGE AUTHORITY	AR 635-200, Ch 14	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.05	
2.	107.0073	
3.	110.02	
4.		
5.		
6.