MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 August 2002
	DOCKET NUMBER:   AR2002072538

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Curtis L. Greenway		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 a honorable discharge.

APPLICANT STATES:  That he has stayed a law abiding citizen and has learned his lesson.  He feels that he has been punished a long time for one mistake.  He did not submit any documents in support of his application.

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

The applicant enlisted in the Regular Army on 2 October 1979 for a period of three years.  He successfully completed basic and advanced individual training and was assigned to Fort Campbell, Kentucky.

On 12 February 1981, the applicant was convicted by a summary court-martial of assaulting a sergeant (SGT), unlawfully entering the room of a SGT, willfully disobeying a lawful order (DOLO) from a SGT, and being disrespectful in language towards a SGT.  He was sentenced to reduction to E-1, forfeiture of $300.00 pay per month for 1 month and confinement at hard labor for 1 month.

The facts and circumstances pertaining to the applicant’s discharge proceedings are not present in his records.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates that he was discharged on 21 April 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct based on frequent incidents of a discreditable nature with civil or military authorities and issued an under other than honorable conditions discharge.  He had 1 year, 5 months and 28 days of creditable service with 22 days of lost time due to confinement.  

There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, 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, and convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge, if such are merited by the soldier's overall record.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 Board notes that the discharge processing papers are not in the applicant’s records.  However, 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.  Records show the applicant was convicted by a summary court-martial of assaulting a SGT, unlawfully entering the room of a SGT, DOLO from a SGT and being disrespectful in language towards a SGT.  The Board has determined that the applicant’s overall military service did not meet the standards of acceptable conduct and performance of duty for Army personnel sufficient to warrant an honorable discharge.  Therefore, there is no basis for upgrading his discharge to honorable.

3.  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.

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

MMD_____  RWA_____  CLG_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002072538	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020820	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810421	
DISCHARGE AUTHORITY	AR635-200,chapter 14-33b(1)	
DISCHARGE REASON	Misconduct - frequent Incidents of a discreditable nature with civil or military authorities	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.