MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 June 2002
	DOCKET NUMBER:   AR2002066853

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Ms. Barbara J. Ellis		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 undesirable discharge be upgraded.

APPLICANT STATES:  That he never received an Article 15 or any other disciplinary actions.  He made a mistake in the civilian community which resulted in lost time but he was never in trouble in the Army.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 23 March 1973.  He completed basic training and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

The applicant has two Enlisted Efficiency Reports (EERs) on file that considerably overlapped.  One, for the period September 1973 – August 1974 wherein his platoon sergeant was the rater and his platoon leader was the reviewer.  He was rated as below average in five characteristics (adaptability, attitude, initiative, leadership, and responsibility) and unsatisfactory in the sixth (duty performance).  Comments indicated he did not care about his personal appearance or his duty performance and when work was required on his vehicle he was absent for one reason or another.

The second EER is for the period September 1973 – July 1974 wherein the applicant’s platoon leader was the rater and his company commander was the reviewer.  This EER rated him as average in the same five characteristics and as above average in the sixth.  Comments indicated he did a good job when told to do something but he needed to take more initiative in his duties.  (Both EERs indicated they were prepared by the correct rater and that the reviewer concurred with the rater.)

A Federal Bureau of Investigation record dated 4 March 1975 shows the applicant was arrested on  11 October 1974 for three counts of second degree burglary and three counts of grand larceny.

On 11 February 1975, the applicant completed a separation physical and was found qualified for separation.

The applicant’s Enlisted Qualification Record, DA Form 20, shows he was in civil confinement from 31 March – 7 May 1975.

The applicant had a third EER for the period December 1973 – May 1975.  This EER rated him as unsatisfactory in all six characteristics and commented that he performed his duties in an unsatisfactory manner.

The discharge packet is not available.  A Veterans Administration Request for Information, VA Form 07-3101, dated 26 February 1976, indicates that his discharge packet was sent to the Veterans Administration.

On 12 June 1975, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206 for civil conviction with an undesirable, under other than honorable conditions discharge.  He had completed 2 years,     1 month, and 12 days of creditable active service and had 38 days of lost time.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

Army Regulation 635-200, at the time, provided the criteria governing the issuance of an honorable, general, or undesirable discharge.  In pertinent part, it stated (as the current version also states) that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 clearly inappropriate.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The current version also states that the quality of service of a soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army, regardless of whether the conduct is subject to Uniform Code of Military Justice jurisdiction. Characterization may be based on conduct in the civilian community.  The burden is on the soldier to demonstrate that such conduct did not adversely affect his or her service.  There are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for characterization.

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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The applicant’s three EERs indicate that his overall military conduct and performance of duty was not satisfactory.  He was arrested for burglary and grand larceny; presumably these are the charges for which he received a civilian conviction.  The Board concludes that these charges adequately met the criteria of “conduct that is of a nature to bring discredit on the Army” and therefore the type of discharge given was and still is appropriate.

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__  __BJE__  __DPH___  DENY APPLICATION

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

INDEX

CASE ID	AR2002066853	
SUFFIX		
RECON		
DATE BOARDED	2002/06/13	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1975/06/12	
DISCHARGE AUTHORITY	AR 635-206 	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.