MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  12 October 2000
	DOCKET NUMBER:  AR2000040520

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. John E. Denning		Member	
	Ms. Carol J. Suiter		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 changed to honorable.

APPLICANT STATES:  In effect, that his violation was a civil offense and not a military offense.  He states that he was not prosecuted by civilian authorities.  He says that he has been diagnosed with Post Traumatic Stress Disorder and is on total disability.

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

He enlisted and entered active duty on 26 August 1980.  He completed training as a chemical operations specialist and served in the United States and Korea.  He reenlisted on 29 March 1983 and was promoted to pay grade E-5 effective 9 August 1985.

On 5 September 1986 the applicant was found guilty in a municipal court of two counts of lewd and lascivious behavior.  He was sentenced to two concurrent 6 month terms of confinement.  On appeal, a district court allowed the applicant to plead guilty to two counts of assault.  He was sentenced to a suspended sentence and placed on supervised probation for 1 year.  He was also fined $500, directed to continue counseling, and directed not to violate any city, state, or Federal laws

On 24 October 1986 the applicant was notified of contemplated separation based on his conviction by civil authorities.  After consulting with counsel he waived his right to consideration of his case by a board of officers but elected to submit a statement in his own behalf.  His statement is not in the available record.

The applicant’s commander forwarded a recommendation for separation based on his civil conviction.  Also mentioned in the request was the applicant’s counseling for writing a bad check and non-support of his dependents.  The separation authority approved the request and directed separation in pay grade E-1 under other than honorable conditions.

Effective 4 December 1986 the applicant was separated under the authority of Army Regulation 635-200, chapter 14.  He had 6 years, 3 months, and 6 days creditable service and 2 days lost time.

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 convictions by civil authorities.  Action will be taken to separate a member for misconduct when a punitive discharge would be authorized for the same or a closely related offense.

The Manual for Courts-Martial, Table of Maximum Punishment, shows that under Article 134, the offense of indecent exposure authorizes a punitive bad conduct discharge.

On 12 April 2000 the Army Discharge Review Board (ADRB), in a unanimous decision, denied the applicant’s request for an upgrade of his discharge.  The ADRB was convinced that his discharge under other than honorable conditions was both proper and equitable given the circumstances of the case.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.  

2.  His contention that civilian authorities did not prosecute him is contrary to the facts available in this case.  While the Board is empathetic, the applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  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.

4.  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

__jm____  __jd____  ___cs_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000040520	
SUFFIX		
RECON		
DATE BOARDED	20001012	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19861204	
DISCHARGE AUTHORITY	AR 635-200, CH 14	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.02	
2.		
3.		
4.		
5.		
6.