PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           11 January 2001
	DOCKET NUMBER:   AR2000043003

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Donald P. Hupman		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his under other than honorable conditions (UOHC) discharge be upgraded to a general discharge (GD).

3.  The applicant states, in effect, that the punishment he received was too severe and does not reflect his accomplishments prior to his misconduct.  He further states that he was an outstanding soldier and now is an outstanding civilian.  In support of this application, he submits a Certificate of Federal Service, Proof of Employment, Employee of the Year Certificate, Outstanding Performance Certificates, Berlin Brigade Certificate of Achievement, and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty.

4.  The applicant’s military record shows that he was honorably separated on 11 December 1980 with 6 years of prior honorable service.  After a 6-month break in service, he reenlisted for 4 years on 16 June 1981 and was assigned to Fort Carson, Colorado. 

5.  On 10 June 1982, the applicant was arrested by civil authorities on arson charges and placed in confinement in the county jail.  The applicant entered into a plea agreement and pled guilty to two counts of 2nd degree arson.  In return, he was granted probation provided he voluntarily commit himself to the Colorado State Hospital for 1 year and pay $5,000.00 in restitution.  He was committed from 11 June 1982 to 23 May 1983.

6.  On 23 December 1982, the unit commander initiated separation action under the provisions of chapter 14-5a, Army Regulation 635-200 by reason of civilian conviction; he recommended a UOHC discharge.  The applicant acknowledged notification and, after consulting with legal counsel, initially requested a hearing before a board of officers, which he later declined.  The unit and intermediate commanders recommended approval of the discharge action with a UOHC.

7.  The appropriate authority approved the recommendation for discharge with a UOHC and waived further rehabilitation efforts.  Accordingly, on 17 June 1983, the applicant was discharged from the Army after completing 1 year and 19 days of creditable military service and accruing 346 days of lost time due to his commitment to the Colorado State Hospital.  He is credited with the Good Conduct Medal, Army Occupation Medal, Expert Infantry Badge, Air Assault Badge, Aircraft Crewmember Badge, Overseas Service Ribbon, and Army Service Ribbon.

8.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, it was beyond that board's 15-year statute of limitations and he was referred to the Army Board for Correction of Military Records.

10.  The applicant is currently employed fulltime by the Department of Defense and has been employed with that agency since 1988.  He has been honored for his outstanding work performance on many occasions during his employment with that agency.

CONCLUSIONS:

1.  The Board carefully reviewed the applicant’s record and noted the lack of any military infractions of discipline (i.e. counseling statements, nonjudicial punishments, or courts-martial convictions).

2.  After carefully reviewing the applicant’s records and considering the misconduct committed by him, the Board concluded that the applicant’s misconduct was a mental aberration in an otherwise noteworthy record.  

3.  While the Board does not condone the applicant’s misconduct, it noted that the court granted him probation contingent upon his receiving treatment in a state mental hospital and paying restitution instead of confining him in a penal institution.  

4.  The Board determined that the applicant’s treatment in the mental hospital, his 7 years of honorable service prior to his misconduct, and his post-service accomplishments were sufficiently mitigating to warrant an upgrade of the applicant’s UOHC discharge.  Therefore, the Board finds the applicant’s characterization of service is inequitable and unjust, and is not appropriate to the overall service rendered by the applicant. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the Under Other Than Honorable Conditions Discharge, dated 17 June 1983, now held by the individual concerned and by issuing to him a General, Under Honorable Conditions Discharge, dated 17 June 1983, by reason of misconduct.

BOARD VOTE:  

__emw__  __amc___  __dph___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Ernest M. Willcher___
		        CHAIRPERSON

INDEX

CASE ID	AR2000043003	
SUFFIX		
RECON		
DATE BOARDED	20010111	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19830617	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	144.6700	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	144.9605	
2.	144.9221	
3.	144.9201	
4.		
5.		
6.