MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 September 2000                  
	DOCKET NUMBER:   AR2000042410

	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:

	Ms. JoAnn H. Langston 		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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 he served for over 11 years with a clean record and that he was not guilty of the charges against him.  He believes that the punishment was too severe by current standards and that he should not be stigmatized for life.  He believes that the failure to timely file should be waived because of his post-service adjustment and conduct.  He provides several letters to substantiate his case.

COUNSEL CONTENDS: Counsel, in effect, concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.  

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 23 November 1977 (COPY ATTACHED).

The applicant’s 10 December 1998 request for reconsideration was inadvertently closed by administrative action.  However the submission of post-service data, such as character references, is normally accepted as an implied argument that these factors warrant the requested relief.  Therefore the applicant’s submission should be considered by the Board.

The applicant reenlisted on 24 November 1952 with 1 year, 11 months and 11 days of prior active service. He served for 5 years, 11 months and 26 days and reenlisted for the final time on 15 July 1958.  

He was separated for unfitness on 30 April 1962 with an undesirable discharge under the provisions of Army Regulation 635-208 and was assigned a separation program number (SPN) code of 28B, indicating frequent incidents of a discreditable nature with authorities.  He had 11 years, 5 months and 21 days of creditable service.  

The applicant’s testimony at a personal appearance hearing before the Army Discharge Review Board (ADRB) on 30 January 1963 indicated that he had been the subject of an Article 32 investigation apparently into allegations that he had committed indecent assault(s) on three minor children.  The applicant contended to the ADRB that the report of these alleged offenses was all a ruse to draw attention away from the fact that his wallet had been stolen while he was a guest in the family’s home.

The analyst for a 1977 ADRB rehearing noted that several documents, previously contained in the applicant’s records were missing.  These included: the record of a company punishment, the recommendation by the company commander that the applicant be eliminated, and the applicant’s waiver of a hearing before a board of officers.

A county sheriff wrote a 7 December 1998 letter in which he stated that he has known the applicant for 35 years and believes him to be honest and ethical.

A South Carolina State Representative wrote that he has known the applicant for 25 years and has found him to be reliable, responsible and of good character.

A businessman wrote that he has known the applicant for 40 years.  He reports that the applicant is active in church and in youth development activities.  He states that the applicant displays good citizenship qualities and a good work ethic.

Department of Defense Directive 1332.28 (discharge review board procedures and standards) provides that “current standards” means that a discharge shall be deemed equitable unless the policies and procedures under which the applicant was discharged differ materially from those currently in effect, to the extent that the current policies or procedures represent a substantial enhancement of rights and there is substantial doubt that the same result would be obtained under the current policies or procedures.

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 failure to timely file is waived.  Reconsideration cases that warrant Board consideration are reviewed on the merits.

2. The applicant’s records are now incomplete.  However, this Board and the ADRB have repeatedly concluded that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and that the character of the discharge is commensurate with the applicant's overall record of military service.  

3.  This Board must now presume administrative regularity in the processing of the applicant's discharge. There is nothing in the available records or in anything submitted by the applicant to overcome that presumption.  

4.  There is no known policy provision that would enhance the applicant’s rights under the discharge process.  Granting the requested relief under the current standards doctrine is not warranted. 

5.  The letters attesting to the applicant’s good character and post-service adjustment and conduct are noted, but they are insufficient as the sole basis for relief because they do not appear to outweigh the repeated misconduct that led to the applicant’s separation. 

6.  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. 

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

___JHL__ ___CLG_  ___ENA_ _  DENY APPLICATION

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

INDEX

CASE ID	AR2000042410	
SUFFIX		
RECON		
DATE BOARDED	20000921	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	4 September 1984	
DISCHARGE AUTHORITY	 AR 635-120	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A93.23	
2.		
3.		
4.		
5.		
6.