MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  28 November 2000
	DOCKET NUMBER:  AR2000049225

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Wilford A. Hale		Member	
	Mr. John H. Kern		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 records be corrected to show that he was honorably discharged.

APPLICANT STATES: That he was found guilty of DWI (Driving While Intoxicated) three times and sentenced to 6 months in jail and 6 months parole.  That he has already served 13 faithful years and now the record does not allow for continued service in another branch of military service, namely the United States National Guard.

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

On 13 July 1997, the applicant reenlisted in the Army Reserve, for 6 years, in the grade of sergeant first class, pay grade E-7.  He had prior enlisted service.

On 4 October 1999, his commanding officer advised that he was taking action to separate him for misconduct – conviction by a civil court.  The basis for his action was his third conviction for driving under the influence (DUI).  He was sentenced in civil court to 1 year confinement at hard labor and 3 years supervised probation.  He also advised the applicant of his rights.  The applicant was notified by Certified Mail, which was returned unclaimed.

On 23 March 2000, the Chief, Military Law, Army Reserve – Personnel Command reviewed the file supporting the proposed separation action on the applicant and determined legal sufficiency.  The applicant pled guilty to DUI third offense and was sentenced to 1 year confinement at hard labor and 3 years supervised probation.  He was served at the last address of record after reasonable efforts did not ascertain his whereabouts in jail.

On 30 March 2000, the applicant was discharged, with a general discharge, under Army Regulation 135-178 based on his civil conviction.

On 10 November 2000, the Army Discharge Review Board reviewed his request for upgrade of the characterization of his service and determined that his discharge was proper and equitable and denied his request.

Army Regulation 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel), Chapter 7 (Misconduct), Section III (Conviction by a Civil Court) indicates that discharge action may be initiated against soldiers when    (1) convicted by civil authorities, (2) a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial, as amended, or the sentence by civil authorities includes confinement for 6 months or more without regard to suspension or probation and (3) the specific circumstances of the offense warrant discharge. 

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 evidence of record does not support the applicant’s request.  He was discharged based on misconduct, and is not entitled to an honorable characterization of service.

2.  The Board notes the disparity in the sentence as given by the applicant         (6 months confinement and 6 months parole) and by his unit commander (1 year confinement and 3 years supervised parole); the Chief, Military Law confirmed the latter as correct.

3.  In the absence of evidence to the contrary, a presumption of regularity applies that the records of the individual concerned are correct.

4.  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.

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

__mp___  ___wh___  ___jk____ DENY APPLICATION

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

INDEX

CASE ID	AR2000049225	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001128	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	UP Reserve GD	
2.		
3.		
4.		
5.		
6.