MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           11 September 2001
	DOCKET NUMBER:   AR2001053632

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Donald P. Hupman, Jr.		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 (UOTHC) discharge be upgraded to general, under honorable conditions (GD).

APPLICANT STATES:  The applicant did not make a statement or submit any additional documents in his own behalf.

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

He enlisted in the Regular Army for a period of 4 years on 29 November 1976.  Following completion of all military training, the applicant was awarded military occupational specialty 13B, Cannon Crewman, and was assigned to Fort Hood, Texas.

On 3 February 1977, the applicant was promoted to private/E-2 and, on 3 December 1977, he was promoted to private first class/E-3.

The applicant departed his unit in an absent without leave (AWOL) status on 1 April 1977 and remained AWOL until 4 April 1977.  On 14 April 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for this period of AWOL.  His punishment consisted of reduction to private/E-1 (suspended for 90 days), forfeiture of $87.00 pay for 30 days, and 14 days of extra duty.

On 5 June 1978, the applicant accepted an NJP for possessing one ounce, more or less, of marijuana.  His punishment consisted of reduction to private/E-2 (suspended until 5 August 1978), forfeiture of $104.00 pay for 1 month, and 14 days of extra duty.

On 1 November 1978, the applicant was promoted to specialist/E-4.

On 15 October 1979, civil authorities arrested the applicant for burglary of a motor vehicle.  On 29 January 1980, he was tried in the Bell County (Texas) District Court.  The applicant pled guilty and was found guilty.  He was sentenced to 4 years' imprisonment in the Texas Department of Corrections, fined $1,000.00, and ordered to make restitution to his victim.  On 29 January 1980, he petitioned the court for adult probation in lieu of imprisonment and the court granted his petition.  The applicant’s sentence was suspended and he was granted probation for a period of 4 years, contingent upon his following the terms and conditions of that probation. 

On 11 February 1980, the applicant’s commander recommended that he be barred from reenlistment.  On 12 October 1980, the applicant submitted a sworn statement requesting that he not be barred from reenlistment.  He stated that he was human and made mistakes; that he had never been counseled or demoted while in the unit; that he had served the Army and his unit in an honorable manner; and that he would like to continue to serve the Army.

On 19 February 1980, the unit commander recommended that the applicant be eliminated under the provisions of chapter 14, Army Regulation 635-200, by reason of civilian conviction.  He recommended a UOTHC discharge.  The applicant acknowledged notification.  The applicant, after consulting legal counsel, waived a hearing by a board of officers, elected not to submit a statement in his own behalf, and indicated that he did not plan to appeal his conviction.

On 14 April 1980, the applicant’s bar to reenlistment was approved.

On 28 April 1980, the appropriate authority approved the recommendation for discharge and directed issuance of a UOTHC discharge.  Accordingly, on 15 May 1980, the applicant was discharged from the Army after completing 3 years, 5 months, and 13 days of creditable military service and accruing 4 days of lost time due to AWOL.

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.

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 this Board.

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.  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.  The Board carefully reviewed the applicant’s record of service and concluded that his discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  Additionally, the applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.

3.  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

__CLA__  ___CLG _  __DPH __  DENY APPLICATION

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

INDEX

CASE ID	AR2001053632	
SUFFIX		
RECON		
DATE BOARDED	20010911	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19800515	
DISCHARGE AUTHORITY	AR 635-200 c14	
DISCHARGE REASON	Civil Conviction	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9500	
2.	144.0100	
3.		
4.		
5.		
6.