MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  27 June 2000
	DOCKET NUMBER:  AR2000036097

	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. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Walter T. Morrison		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: In effect, that his records be corrected to extend his enlistment to 31 March 2000; that he be separated effective that date; and, that he be placed on the Retired List effective 1 April 2000.  He also requests this Board investigate any and all matters deemed necessary in his case.

APPLICANT STATES: That he was convicted of a civil crime and the Army only transferred him to a new location, until after he was convicted.  He indicates the Army did nothing until after he was convicted by the State of South Carolina.  He contends he should be allowed to extend his enlistment in order to become retirement eligible.  He contends this is necessary because his children depend on his military pay and CHAMPUS benefits.

COUNSEL CONTENDS: That he was the applicant’s counsel while he was on active duty; however, he is prohibited from representing him since his discharge.

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

During the period from 14 August 1978 to 13 August 1983, he served on active duty in the Army.

On 14 February 1984, he enlisted in the Army Reserve Delayed Enlistment Program.

On 1 March 1984, he reenlisted in the Army.  

On 5 May 1997, the Grand Jurors of Charleston County, State of South Carolina, indicted the applicant for Grand Larceny on or about 12 March 1997.

On 4 March 1998, he pled guilty and was convicted by the General Sessions Court of the State of South Carolina of Grand Larceny Greater than $5,000.00.  He was sentenced to 5 years confinement.  The balance of the sentence was suspended and he was ordered to be placed on probation for a period of 2 years. Permission was granted for the probation to be served in North Carolina.

On 22 April 1999, an Administrative Separation Board found that the applicant warranted separation due to his civilian conviction and recommended that he be discharged from the Army and issued a General Discharge Certificate.  In an undated memorandum, after his consideration of the board proceedings, the applicant’s commander recommended to Department of the Army that he be separated prior to the expiration of his current term of service.

On 19 May 1999, the Chief, Administrative Law Division, Fort Bragg, North Carolina found that the proceedings were legally sufficient; that they complied with legal requirements; that there was sufficient evidence to support the findings of the board; and, that the recommendations were consistent with the findings.

An undated memorandum from the Commander, 1st Region (ROTC), Fort Bragg, North Carolina to the Commander, Army Personnel Command recommended the applicant be separated under Army Regulation 635-200, chapter 14, based on his civil conviction.

On 3 December 1999, the Commander, Army Personnel Command approved the request for separation and directed he be discharged under honorable conditions and issued a General Discharge Certificate.

On 31 January 2000, he was discharged Under Honorable Conditions and issued a General Discharge Certificate.  His DD Form 214 indicates he had 19 years and 11 months of creditable service.

Army Regulation 15-185 (Army Board for Correction of Military Records), Paragraph 2-2.3. (ABCMR Functions), indicates “The ABCMR will decide cases on the evidence of record.  It is not an investigative body.” 

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, and convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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.  This Board is not an investigative body; therefore, the requested investigation will not be conducted.

2.  The Army had no justification to take administrative action until after the applicant was convicted by the civil court.

3.  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.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  There is no justification for granting the requested extension of service, separation or placement on the Retired List.

6.  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.

7.  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

__mm____  __cg____  __wm____ DENY APPLICATION

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

INDEX

CASE ID	AR2000036097	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000627	
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         1.113	Ext of svc	
2.		
3.		
4.		
5.		
6.