PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 October 1999                   
	DOCKET NUMBER:   AR1999025716

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge be upgraded to a general discharge under honorable conditions.

3.  The applicant states that since his discharge he has attended college for four years, he has a steady job, he is married and has two children.  He provides no supporting evidence but could furnish letters from people who would vouch for his good behavior.

4.  The applicant’s military records show that he enlisted in the Regular Army on 16 September 1976.  He was honorably discharged on 28 May 1979 for the purpose of immediately reenlisting on 29 May 1979.

5.  On 2 July 1979, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code Of Military Justice (UCMJ) for absenting himself from his unit.  On 29 July 1979, he accepted NJP under Article 15, UCMJ for disobeying a lawful order and being disrespectful in language towards his superior non-commissioned and commissioned officers.

6.  On or about 9 October 1980, the applicant was convicted of forgery in civil court and sentenced to three years probation.

7.  On 21 October 1980, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 22 – 30 July 1980, 4 – 6 August 1980, and 27 August – 15 September 1980.  He was sentenced to be reduced to E-1 and to confinement at hard labor for 30 days.  

8.  The applicant departed AWOL 20 January 1981.  He was apprehended by civil authorities on 27 February 1981.  

9.  On or about 1 April 1981, the applicant was sentenced to 10 years civil confinement for violation of his probation (by committing theft, unlawfully appropriating property, failing to report to his probation officer, failing to pay court costs, failing to pay a supervisory fee, and failing to pay a fine) regarding his conviction for forgery.

10.  On 2 May 1983, separation action under the provisions of Army Regulation 635-200, Chapter 14, civil conviction, was initiated. 

11.  The applicant was notified of the proposed separation action.  He requested consideration of his case by a board of officers and representation by consulting counsel.  He did submit a statement in his own behalf (wherein he stated he had an excellent and clean record and would like to remain in the service), and he stated he was going to appeal his civil conviction.  

12.  A board convened on 16 June 1983.  A statement from the applicant was entered as evidence.  After considering all the evidence before it, the board found the applicant undesirable for further retention in the military service because of civil conviction and recommended his discharge because of misconduct with issuance of an under other than honorable conditions (UOTHC) discharge certificate.

13.  On 30 June 1983, the appropriate authority approved the findings of the board and directed the applicant be discharged and furnished a UOTHC discharge certificate.  

14.  On 11 July 1983, the applicant was discharged, in pay grade E-1, with a discharge UOTHC, under the provisions of Army Regulation 635-200, Chapter 14, misconduct – conviction by civilian authorities.  He had completed 6 years, 5 months and 13 days of creditable service and had 147 days of lost time.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel for misconduct.  That regulation provides, in pertinent part, for the elimination of enlisted personnel for misconduct when they are initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, if a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial, 1984, as amended, or the sentence by civil authorities includes confinement of 6 months or more, without regard to suspension or probation.  

16.  On 31 October 1988, the Army Discharge Review Board denied the applicant’s request for an upgrade discharge.

CONCLUSIONS:

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 applicant’s administrative separation was accomplished in compliance with applicable regulations.  The type of discharge given was and is still appropriate considering the reason for his civil conviction and his disciplinary record during that period of service.

3.  The Board has taken cognizance of the applicant’s willingness to furnish letters vouching for his good post-discharge behavior; however, this factor would not warrant the relief requested and it would not be appropriate to change the records to show that he was discharged honorably from the reenlistment commencing on 29 May 1979.  However, it appears that his honorable discharge of 28 May 1979 should be considered as having been issued as a complete and unconditional separation.

4.  The circumstances of the applicant’s honorable discharge on 28 May 1979 may have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

5.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 28 May 1979.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__ew____  __tbr___  __ewl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Edward Williamson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999025716	
SUFFIX		
RECON		
DATE BOARDED	19991013	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19830711	
DISCHARGE AUTHORITY	AR 635-200. . . . .  	
DISCHARGE REASON	A61.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.