MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 September 2002
	DOCKET NUMBER:   AR2002075522

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Ms. Karen A. Heinz		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 (UOTHC) be upgraded to a general discharge under honorable conditions.

APPLICANT STATES:  That, while his military record was not spotless, it was not sufficiently bad that it warranted a discharge UOTHC.  The sole reason for his discharge was his being in civilian confinement.  Not to excuse his failure to obey the laws, but his mistake was supposedly rectified when he served those months (in confinement).  It is unjust that now he is ostracized and cannot even receive medical benefits.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 19 March 1977.  He completed basic training and advanced individual training and was awarded military occupational specialty 75B (Unit Clerk).

On 18 October 1978, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty and for disobeying a lawful order to appear in Class A uniform for an inspection.  His punishment was a forfeiture of $75.00 pay for one month and 7 days confinement in the Correctional Custody Facility, both suspended for 90 days.  He appealed the punishment.  His appeal was denied.  On 13 November 1978, the suspension of the punishment of the forfeiture was vacated.  

A Report of Medical Examination, SF 88, dated 22 February 1979 shows the applicant completed an Expeditious Discharge Program separation physical on this date.  He was found qualified for separation.

The applicant's Personnel Qualification Record, DA Form 2-1, item 27 contains the entry, "SM was apprehended and confined at Pierce County 790327.  SM was released 790509 pending trial."  Item 21 contains an entry showing he returned to civil confinement on 17 May 1979.

The applicant's discharge packet is not available.  His Certificate of Release or Discharge from Active Duty, DD Form 214, is not available.  A Certification of Military Service, NA Form 13038, shows he was discharged on 19 March 1980 with a discharge UOTHC.

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 states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 clearly inappropriate.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  Characterization may be based on conduct in the civilian community; the burden is on the soldier to demonstrate that such conduct did not adversely affect his or her service.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable 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 and, 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.  The Board notes that the applicant's record was not spotless.  It appears he was, in fact, being processed for discharge under the Expeditious Discharge Program at the time he was placed in civil confinement.  

3.  Characterization of service may be based on conduct in the civilian community.  The applicant has not met the burden of demonstrating that the conduct which resulted in his civil conviction did not adversely affect his service or that his service was not appropriately characterized.

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

__EJA__  __TBR___  ___KAH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002075522	
SUFFIX		
RECON		
DATE BOARDED	2002/09/17	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/03/19	
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.