MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:  17 July 03
	DOCKET NUMBER:  AR2002082270

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Regan K. Smith		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 general discharge be upgraded to honorable.

APPLICANT STATES:  That he performed continuous honorable service until his civil conviction due to an isolated case of violence that occurred overseas and that he is a victim of double jeopardy.  In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), two Certificates of Achievement, and an award certificate awarding him the Army Achievement Medal.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted 
on 25 August 1987, as a military policeman.  

On 20 March 1991, the applicant was convicted in the Inchon District Court, Ichon, Korea, on the charge of violation of the Law Concerning Punishment of Violent Act (Aggravated Assault).  He was sentenced to confinement for 10 months, suspended for 2 years.

On 16 April 1991, the applicant was notified by his commander that he was being recommended for discharge under the provisions of Army Regulation 
635-200, chapter 14, by reason of civil conviction.  He based his recommendation on the applicant’s conviction in the Inchon District Court on 20 March 1991, for violation of the Law Concerning Punishment of Violent Acts (Aggravated Assault) and his sentence to imprisonment for 10 months, suspended for 2 years.

The applicant consulted with counsel, requested consideration of his case by a board of officers, representation by counsel, and elected to submit a statement in his own behalf.  He requested that he be retained and stated that what happened to him was an isolated incident, which will never happen again.  He is not trying to justify why it happened, but it happened and he has learned from his mistakes. He does not want to enter civilian life with a derogatory military record and still has more to contribute to his military career.  Until this incident, he felt that he was the best soldier in his command and would like to put this incident behind him and return to being a soldier.

On 9 May 1991, the commander submitted his recommendation to separate the applicant under the provisions of AR 635-200, chapter 14, due to his civil court conviction.

On 13 June 1991, the separation authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.  The applicant was discharged on 26 June 1991.  He had a total of 3 years, 
10 months, and 2 days of creditable service.  

There is no evidence of any additional derogatory information in the applicant’s records.

The applicant applied to the Army Discharge Review Board (ADRB) on
10 August 2002 for an upgrade of his discharge.  After a thorough review of his record, including a full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense, the ADRB concluded that the discrediting entry constituted a departure from the standards of conduct expected of soldiers in the Army.  The applicable Army Regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  After examining all circumstances, the ADRB determined that the applicant's single incident of misconduct did indeed affect the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  It also diminished the quality of his service below that meriting a fully honorable discharge. The Board, being convinced that the reason for discharge and characterization of service were both proper and equitable, voted to deny relief on 22 November 2002. 

Army Regulation 635-200 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, patterns of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  

2.  The type of discharge directed and the reasons for that separation were 
appropriate considering all of the facts of the case.

3.  The Board noted the applicant's achievements; however, they are not sufficient to form a basis for an upgrade of his discharge.

4.  The Board noted the comments made by the ADRB, including the fact that there was no additional derogatory information in the applicant's records.  However, the ADRB concluded that his singe act of misconduct clearly diminished the quality of his service to warrant a fully honorable discharge.
This Board concurs with the ADRB's assessment. 

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

__jl___  __jm____  __rs____  DENY APPLICATION

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

INDEX

CASE ID	AR2002082270	
SUFFIX		
RECON		
DATE BOARDED	20030717	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19910626	
DISCHARGE AUTHORITY	AR 635-200, chapter 14	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	189	
2.		
3.		
4.		
5.		
6.