MEMORANDUM OF CONSIDERATION

           IN THE CASE OF:     

	BOARD DATE:            5 December 2000
	DOCKET NUMBER:   AR2000042318

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 under other than honorable conditions discharge (UOTHC) be upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, that he was not provided legal counsel at the time of his discharge.  He believes that he was railroaded out of the Army and that he was treated unjustly because he was not given a chance to review his options at the time of discharge.  He submits a copy of his DD Form 
214 (Certificate of Release or Discharge from Active Duty), a copy of the notification of the recommendation for his discharge for misconduct and certified mail receipts in support of his request.

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

On 22 October 1976, he enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 19E (Armor Crewman).  On 5 February 1977, he was assigned to Fort Riley, Kansas.

Between October 1978 and March 1979, four nonjudicial punishments (NJPs) were imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice, for numerous instances of failure to repair and for being absent without leave (AWOL) from his place of duty on two separate occasions.  His punishments included forfeiture of pay, extra duty and reduction in rank twice.  On 2 February 1979, he was reduced from pay grade E-4 to pay grade
E-3 and on 29 March 1979, he was reduced from pay grade E-3 to pay grade 
E-2.

On 16 May 1979, the applicant was arrested and confined by civil authorities in Shawnee County, Kansas.  He was charged with kidnapping and rape.  He pled no contest to the charges and he was sentenced to confinement for a period not less than 5 years and no more than 20 years on each count. 

On 30 August 1979, his commander notified him that he was being recommended for discharge under the provisions of chapter 14, Army Regulation 635-200, as a result of conviction by a civil court.  In compliance with the provisions of chapter 14, he was further advised that he could receive a UOTHC discharge.  Since he was in civilian confinement, he was advised of his rights to include the right to legal counsel to represent his case before a board of officers in his absence.  He was also advised that he could provide a statement in his own behalf and that he could be discharged without further notice if he did not respond with 30 days.  The notification was hand delivered to him by his unit in September 1979.  The notification contained the address for the Chief, Defense Counsel, Fort Riley, Kansas and a prepaid, return envelope.

The applicant failed to respond to the notification within the 30 day timeframe.  He was then notified of the discharge recommendation by certified mail, with a return receipt request on two separate occasions.  The second notification was mailed on 14 November 1979.  The available records contain a “Return Receipt” which shows that the recommendation was delivered to the applicant on 
15 November 1979.  He failed to respond.

On 14 December 1979, the applicant’s commander recommended that he be separated under the provisions of chapter 14, Army Regulation 635-200 for misconduct-conviction by civil court.  

On 14 December 1979 and on 3 January 1980, both the battalion and brigade commanders recommended approval.

On 28 January 1980, competent authority approved the recommendation and directed the issuance of a UOTHC for misconduct.

On 13 February 1980, the applicant was discharged with a UOTHC discharge under the provisions of chapter 14, Army Regulation 635-200, for misconduct-conviction by civil court.  He had completed 2 years, 6 months, and 16 days of active military service and he had approximately 268 days lost time due to being AWOL and imprisoned.

Army Regulation 635-200, in effect at the time set forth the basic authority for the separation of enlisted personnel for misconduct.  Chapter 14 provided, in pertinent part, that an individual would be considered for discharge when convicted by civil authorities of an offense which involved moral turpitude.  A UOTHC discharge was normally considered appropriate, but a GD or a HD could have also been awarded.

DISCUSSION:  Considering all the evidence of record, applicable law and regulations, it is concluded:

1.  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.

2.  Prior to being discharged, the applicant’s rights were explained to him in writing and he was provided an opportunity to obtain legal counsel and to review his options.  He was notified of his options on three separate occasions. However, he failed to respond to these notifications or to exercise his options.  He has provided no evidence to the contrary.

3.  The Board determined that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The type of discharge directed and the reason therefore was appropriate considering all the facts of the case.

5.  Conviction by civil authorities obligated military authorities to consider the 
applicant for discharge.  Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army. 

6.  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

__amc___  __alr___  __jam____  DENY APPLICATION

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

						

INDEX

CASE ID	AR2000042318	
SUFFIX		
RECON		
DATE BOARDED	20001205	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19800213	
DISCHARGE AUTHORITY	AR 635-200  Chapter 14	
DISCHARGE REASON	A67.00	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	144.6700	
2.		
3.		
4.		
5.		
6.