PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 February 2000                   
	DOCKET NUMBER:   AR2000034982

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		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 honorable.

3.  The applicant states that he had just returned from Korea and was having family difficulties.  He served honorably but his personal life had some ups and downs.  He is still married to his wife.  He provides no supporting evidence.

4.  The applicant's military records show that after having had prior service in the U. S. Army Reserve, he enlisted in the Regular Army on 18 February 1992.  He was honorably discharged on 7 August 1996 for the purpose of immediately reenlisting on 8 August 1996.  He has no record of Article 15 actions or courts-martial. 

5.  On 19 February 1997, the applicant was counseled for conduct unbecoming a non-commissioned officer (spouse abuse).

6.  On 19 March 1997, the applicant was counseled for creating a hostile environment of a sexual overture (sic).

7.  On 11 July 1997, the applicant was arrested for 4th degree assault, minor injury (second domestic assault charge).  On 19 July 1997, he pleaded guilty and was sentenced to 6 months confinement (suspended) and to serve 30 days confinement on weekends. 

8.  On 5 August 1997, separation action under the provisions of Army Regulation 635-200, Chapter 14, Conviction by Civil Court, was initiated. 

9.  On 6 August 1997, the applicant was advised by his attorney of the basis for the contemplated action to separate him for commission of a serious offense.  He waived consideration of his case by an administrative separation board contingent upon his receiving an honorable discharge and requested consulting counsel.

10.  On 20 August 1997, the applicant was advised by his attorney of the basis for the contemplated action to separate him for conviction by civil court.  He waived consideration of his case by an administrative separation board.  He voluntarily withdrew his 6 August 1997 conditional waiver for an honorable discharge and accepted the general discharge.

11.  The appropriate authority approved the recommendation and directed the applicant be discharged and given a general discharge under honorable conditions.  

12.  On 26 August 1997, the applicant was discharged, in pay grade E-5, with a general discharge under honorable conditions, under the provisions of Army Regulation 635-200, Chapter 14, misconduct – conviction by civilian authorities.  He had completed 5 years, 10 months and 19 days of creditable service and had 7 days of lost time (civil confinement).

13.  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.  

14.  Army Regulation 635-200 states, in pertinent part, that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 clearly inappropriate.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
The quality of service of a soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline, regardless of whether the conduct is subject to Uniform Code of Military Justice jurisdiction.  Characterization may be based on conduct in the civilian community.  

15.  On 13 August 1999, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

16.  The Department of Veterans Affairs (VA), in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable laws and regulations in effect at the time of his separation.  The Board concludes that the fact that his conduct led to a civil conviction, especially as it was the second instance of the same conduct, is sufficient to deny him a fully honorable discharge.

2.  Although the Board takes cognizance of the applicant’s continuing marriage to his wife, this factor does 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 8 August 1996.  However, it appears that his honorable discharge of 7 August 1996 should be considered as having been issued as a complete and unconditional separation.

3.  The circumstances of the applicant’s honorable discharge on 7 August 1996 may work an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

4.  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 7 August 1996.

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

BOARD VOTE:  

__aao___  __clg___  __mw____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999034982	
SUFFIX		
RECON		
DATE BOARDED	20000216	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19970826	
DISCHARGE AUTHORITY	AR 635-200, Ch 14 	
DISCHARGE REASON	A61.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.