MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            12 August 2003                  
	DOCKET NUMBER:    AR2003087931

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine 		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones		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 under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions discharge.  

APPLICANT STATES:  In effect, that the petty offense for which he was tried and convicted was so trivial that it was ultimately deleted from the civil records.  He states there is no evidence in the Colorado legal system that substantiates the reason given for his discharge.  In support of his application, he provides civil and police records from the State of Colorado, and character references attesting to his post service conduct.  

EVIDENCE OF RECORD:  The applicant’s military records were not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were lost in that fire.  

A Certificate of Military Service (R6-Form 6954), issued on 6 June 1984, confirms that the applicant was a member of the Regular Army from 15 August 1940 through 10 September 1942.  This document also verifies that he was discharged under other than honorable conditions, and held the rank of private at the time.  

A United States Government Office Memorandum, dated 14 June 1946, issued by an adjudicator working the applicant’s request for a service connected disability confirms that the applicant was separated from the Army UOTHC based on his civil conviction by the State of Colorado on 29 August 1942.

The available evidence also includes two letters from the Executive Secretary of this Board, dated 6 February 1984 and 29 February 1988 respectively, which advised the applicant that it was impossible for the Board to make a fair, impartial, and equitable determination in his case because of the absence of his military records, and the case was administratively closed without referral to the Board.  

The applicant provides a police records check from the Denver Police Department, Denver, Colorado, dated 9 July 1987, which indicated that there was no arrest record on the applicant.  This records check also indicated that there may have been other documents on file that were provided by the court; however, by law these could not be discussed.  

The applicant also provides character references from the business manager of a local union chapter of the International Brotherhood of Electrical Workers that confirms the applicant was a member of the local chapter for 28 years and during this period no contractor ever complained about his work performance.  He also provides a character reference from a co-worker and friend who attests to his dependability and conscientiousness.  

Army Regulation 615-360, in effect at the time, set forth the policy and procedures for separation of enlisted personnel.  It specifically provided for the separation of enlisted personnel by reason of civil conviction.  

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 the applicant’s claim that his discharge should be upgraded because the State has expunged the civil conviction from the State records, and based on his post service conduct.  However, it finds these factors are not sufficiently mitigating to warrant the requested relief.  

2.  The available evidence does not include the facts and circumstances concerning the events that led to the applicant’s discharge from the Army.  However, it does confirm that the applicant was convicted by a civil court and although the State records may have now be expunged, by the applicant’s own admission he was in fact convicted of an offense by a civil court at the time of his discharge.  

3.  The Board notes that the available evidence includes a Certificate of Military Service.  This document confirms the applicant was discharged under other than honorable conditions, and the Board presumes government regularity in the process.  Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

4.  The Board carefully considered the character references provided by the applicant that attest to his post service good conduct.  However, absent any evidence that he performed sufficient meritorious service to warrant an upgrade of his discharge, the Board concludes that his post service conduct alone does not support the requested relief.  

5.  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.

6.  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

TK__  _WDP___  __FCJ__  DENY APPLICATION

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

INDEX

CASE ID	AR2003087931	
SUFFIX		
RECON		
DATE BOARDED	2003/08/	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1942/09/10	
DISCHARGE AUTHORITY	AR 615-360	
DISCHARGE REASON	Civil Conviction	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.