MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 September 2000                  
	DOCKET NUMBER:   AR2000042356

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo 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:  Reconsideration of his earlier appeal to correct his records by upgrading his discharge to honorable. 

APPLICANT STATES:  In effect,  that his earlier appeal was denied because the record of civilian conviction had not been expunged.  When he applied before he thought the record had been expunged, but he was mistaken.  Now it has been.  He submits the court order to substantiate his case.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 24 November 1999 (COPY ATTACHED).

The applicant’s submission is new evidence that requires Board consideration.

An 18 April 2000 court order specifically expunged the record of his 7 September 1971 conviction for assault and restored his civil rights.

The applicant’s previous submissions included: a 5 May 1999 letter from the local chief of police stating the applicant had no state or local criminal record; and a 5 May 1999 letter from the city attorney, who has known the applicant since 1973.  He reports that the deferred sentence was never executed, that the applicant’s conduct has been exemplary and that the record had been expunged. 

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.   While the previous Board noted that the record had not been expunged as the applicant and his supporters claimed, that was not the reason his request was denied.  

2.  His request was denied because his administrative separation was accomplished in compliance with applicable regulations with no indication of any procedural errors that might have jeopardized his rights.  Furthermore, he failed to show to the satisfaction of the Board, that the record is in error or unjust and it did not otherwise appear to be so.

3.  This Board can and, when appropriate, does recommend that a discharge be upgraded on the basis of post-service behavior and conduct.  However such factors in this case are insufficiently meritorious to warrant such a recommendation.  Especially, when the applicant, the police chief and the city attorney all submitted erroneous information by stating that he had no criminal record or that the record had been expunged.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  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

__CMF__  ___FE __  __CJS___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042356	
SUFFIX		
RECON		
DATE BOARDED	20000912	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19720111	
DISCHARGE AUTHORITY	 AR 635-106	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.21	
2.		
3.		
4.		
5.		
6.