MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 April 2002                   
	DOCKET NUMBER:   AR2002068931

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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:  In effect, that his discharge be upgraded.

APPLICANT STATES:  In effect, that if his service in the Delayed Entry Program (DEP) had been taken into account, he would have been entitled to an administrative separation board.  Supporting evidence is as listed on the DD Form 149.

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

He enlisted in the DEP on 27 June 1986.  He enlisted in the Regular Army on   29 June 1987.  He was honorably discharged on 19 December 1990 for the purpose of immediately reenlisting on 20 December 1990.

On 12 March 1993, the applicant was convicted in the State of Texas, County Court at Law No. 8 of Bexar County for assault – bodily injury.  He was placed on probation for a term of 12 months effective 12 March 1993.

On 1 April 1993, action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, civil conviction, was initiated.  The commander cited the applicant’s civil conviction and sentence to probation, his being late for work and failing to accomplish tasks at work, his failure to return to his place of duty after an appointment, his violating barracks visitation policy by having a female in his room after visiting hours, his assault on a civilian female, and other misconduct as the specific reasons for the action.  He recommended the applicant receive a general discharge under honorable conditions.

On 8 April 1993, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He requested consulting counsel and stated that he would submit a statement in his own behalf.  A statement is not available. 

On 26 April 1993, the appropriate authority approved the recommendation and directed the applicant be discharged and furnished a General Under Honorable Conditions Discharge Certificate.  

On 4 May 1993, the applicant was discharged, in pay grade E-4, with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14, misconduct, civilian conviction.  He had completed 5 years, 10 months, and 6 days of creditable service and had no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel for misconduct.  That regulation provides, in pertinent part, for the elimination of enlisted personnel for misconduct when they are initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, if a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial, 1984, as amended, or the sentence by civil authorities includes confinement of 6 months or more, without regard to suspension or probation.  

Army Regulation 635-200 also states that a soldier will be advised of his or her right to a hearing before an administrative separation board if he or she had 6 or more years of total active or reserve service on the date of initiation of recommendation for separation.  This includes creditable service in any U. S. military component, for example, the U. S. Army Reserve (including the Individual Ready Reserve).

The Department of Defense Financial Management Regulation states that service as an enlisted member in a Reserve Component before beginning active duty in a Regular component (frequently referred to as the DEP), provided the member enlisted in the Reserve Component before 1 January 1985, is creditable service.  

On 3 June 1996, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He enlisted in the DEP after 1 January 1985; therefore, his service in the DEP was not creditable and did not qualify to be counted towards his right to an administrative separation board.  

3.  Considering the type of misconduct for which separation action was initiated and the frequency and description of other types of misconduct which were cited as reasons for which the applicant was recommended for separation, the type of discharge given was rather generous.

4.  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

__jl____  __gdp___  __cg____  DENY APPLICATION

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

INDEX

CASE ID	AR2002068931	
SUFFIX		
RECON		
DATE BOARDED	20020425	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19930504	
DISCHARGE AUTHORITY	AR 635-200, ch 14	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.