MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  15 June 2000
	DOCKET NUMBER:   AR1999027881

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Ms. Kathleen A. Newman		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 records of the former service member (FSM) be corrected to show that he was separated with a characterization of service of fully honorable vice under other than honorable conditions (UOTHC). 

APPLICANT STATES: That this request is being made by the FSM’s parents in order that their son, the FSM, may be buried in Florida National Cemetery and that his son may become entitled to VA benefits.  The Father alleges the FSM did not perpetuate, aid, or abet in the crime of attempted robbery and stabbing of a Korean National cab driver.  He indicates the FSM did not waste his time in Cho-Nan prison; he used it to better himself by taking college and Bible courses and became a certified paralegal.  His son and other family members survive the FSM.  The FSM informed his family that his discharge under other than honorable conditions could be upgraded after six months, provided he kept his nose clean.  He provides his understanding of what his former spouse, the FSM’s mother, was told by personnel while visiting in Korea for various trial procedures. The applicant further states his son was killed in an automobile accident on       18 September 1998.

EVIDENCE OF RECORD: The custodian was unable to provide the FSM’s military records and the information herein was obtained from alternate sources.

On 23 January 1993, the FSM enlisted in the Army Reserve Delayed Enlistment Program and on 11 February 1993, entered the Regular Army, for 4 years.  He completed his required training and was awarded MOS 62E (Heavy construction Equipment Operator) and he was advanced to pay grade E-2.

On 16 December 1993, the FSM and another soldier came under investigation for attempted murder and robbery and for conspiracy to commit murder and robbery by stabbing the victim and attempting to grab his wallet.

On 23 December 1993, after waiving his legal rights, the FSM outlined how he and the other soldier were going to rob a taxi driver.

On 29 December 1993, the Republic of Korea Minister of Justice notified the Commander, 2d Infantry Division that the Republic of Korea would exercise jurisdiction.

On an unspecified date, he was convicted of attempted murder, attempted robbery, conspiracy to murder and conspiracy to commit robbery and sentenced to 5 years in prison.

During the period 27 May 1995 to 2 May 1998, he was in civil confinement in a Korean prison.

On 9 May 1998, the FSM was discharged, in pay grade E-1, UOTHC under Army Regulation 635-200, chapter 14, for misconduct, based on his civil conviction and imprisonment.  His DD Form 214 shows he had 5 years, 2 months and 29 days of creditable service (sic) and 1,071 days of lost time.  

On 9 May 2000, the Army Discharge Review Board (ADRB) found the FSM’s discharge to be proper and equitable and denied recharacterization of his service.  The ADRB noted the FSM’s DD Form 214 was incorrectly prepared and did not deduct lost time from total time in service.

Army Regulation 635-200 (personnel Separations – Enlisted Personnel) 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.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

Army Regulation 635-5 (Personnel Separation Documents) indicates, in pertinent part, that the Net Active Service This Period is the “Amount of service this period, computed by subtracting item 12a from 12b.  Lost time under 10 USC 972 and non-creditable time after expiration of term of service, if any, are deducted.”

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 FSM’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural that which would tend to jeopardize his rights.

2.  The character of his discharge is commensurate with his overall record.

3.  In the absence of evidence to the contrary, a presumption of regularity applies that the records of the individual concerned are correct.

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 this 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

___ot___  ___mt____  __kn____ DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
     of Military Records

INDEX

CASE ID	AR1999027881	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000615	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.110	UP Char of Svc	
2.		
3.		
4.		
5.		
6.