MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            15 March 2000
	DOCKET NUMBER:   AR1999030213

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  That his commander gave him a choice to either take the discharge under other than honorable conditions or to be transferred.

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

The applicant enlisted with a moral waiver in Columbus, Ohio on 14 January 1976 for a period of 3 years, training as a combat engineer, and assignment to Fort Campbell, Kentucky.

He successfully completed his training and was transferred to Fort Campbell on 1 May 1976.  He was promoted to the pay grade of E-2 on 14 May 1976 and remained at Fort Campbell until 16 March 1977 when he was transferred to Fort Carson, Colorado.

An FBI report of investigation contained in his records indicates that he was arrested for armed robbery on 26 July 1976 in Clarksville, Tennessee and was released on a $5,000 bond.

On 12 August 1977 nonjudicial punishment was imposed against the applicant for being AWOL from 28 July to 29 July 1977.  His punishment consisted of a forfeiture of pay and extra duty for 7 days.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant, which indicates that he was discharged under other than honorable conditions on 11 November 1977 under the provisions of Army Regulation     635-206, due to conviction by civil authorities.  He had served 1 year, 9 months, and 28 days of total active service.  

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  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, conviction by civil authorities, desertion or AWOL.  A discharge under other than honorable conditions is normally considered appropriate. 

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 the absence of evidence of the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, given the seriousness of his offense and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  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 the aforementioned requirement.

5.  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

____rvo _  __mkp___  ___vbc__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030213	
SUFFIX		
RECON		
DATE BOARDED	2000/03/15	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/11/11	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	627	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627 	144.6100/A61.00/CONV BY CIV AUTH	
2.		
3.		
4.		
5.		
6.