MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           13 July 2000
	DOCKET NUMBER:   AR2000035330

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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 to honorable.

APPLICANT STATES:  That he served his time for the crime committed and believes that this is double jeopardy.

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

He enlisted on 8 March 1977 and, after training, was assigned to Fort Ord, California.

On 25 June 1979, the applicant was tried and convicted by the Superior Court of California, County of Monterey, for assault with a firearm on an inhabited building.  He was sentenced to probation, of which conditions of probation included 300 days of jail time.

On 31 October 1979, the applicant’s commander recommended he be discharged by reason of civil conviction under the provisions of Army Regulation 635-200, chapter 14.  The applicant appeared before a board of officers on 
8 January 1980, which supported the commander’s recommendation.  The separation authority, a major general, approved the recommendations and directed the applicant be issued a Discharge Certificate Under Other Than Honorable Conditions.

The applicant was discharged on 1 February 1980 with 2 years, 4 months and 
4 days of creditable service and 200 days of time lost.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  When such separation was warranted, a discharge under other than honorable conditions was considered appropriate.

On 23 October 1981, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.

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.  The applicant's administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

2  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.

3  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

__jlp___  __mhm___  __jea____  DENY APPLICATION

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

INDEX

CASE ID	AR2000035330	
SUFFIX		
RECON		
DATE BOARDED	20000713	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19800201	
DISCHARGE AUTHORITY	AR635-200 CH14	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.