MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            12 August 1999                  
	DOCKET NUMBER:   AR1999023022

	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. Loren G. Harrell		Director	
	Ms. Camilla Pugh		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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 discharge (UOTHC) be upgraded to honorable.

APPLICANT STATES: The applicant states that he has had good service in the Army and the Army National Guard.

COUNSEL CONTENDS:  Counsel concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.

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

He enlisted in the Regular Army on 29 December 1992 and was discharged on 
22 July 1994.  He had prior Army National Guard service.

The applicant was arrested for confessed murder of his wife and was incarcerated by civilian authorities.  He was found guilty and remains incarcerated.

Based on the foregoing his commander recommended his discharge for misconduct for a serious offense and a Under Other Than Honorable Conditions Discharge Certificate.  The appropriate authority approved the finding and recommendation of the board of officers for discharge for misconduct.

The applicant underwent a mental evaluation on 7 January 1994, which determined that he could distinguish between right and wrong.  Consequently, the applicant was cleared psychiatrically for administrative action deemed necessary by command.

Accordingly, the applicant was discharged under other than honorable conditions on 24 July 1994, under the provisions of Army Regulation 635-200 for, misconduct.  He had served 1 year, 6 months and 24 days of total active service. 

The applicant applied to the Army Discharge Review Board and was denied upgrade on 11 September 1998 based on a record review.  He was advised he may reapply for a personal appearance hearing.

Army Regulation 635-200 sets forth the basis 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, convictions by civil authorities; desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or is unlikely to succeed.

Paragraph 3-7 provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate. 

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 applicant’s separation under the provisions of Army Regulation 635-200, Chapter 14, for misconduct and commission of a serious offense, was administratively correct and in conformance with applicable regulations.

2.  Careful consideration has been given to the applicant’s contention and his previous service, however, the misconduct and commission of a serious offense preferred against him, specifically for murder of his spouse was justified and valid.

3.  An Honorable discharge is a separation with honor and 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.  He has not convinced the Board he deserves an honorable characterization of his service.

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 _____  jma_____  mw_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 August 12	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.