MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 December 2002
         DOCKET NUMBER: AR2002074569

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Powers		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)

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APPLICANT REQUESTS: That his under honorable conditions discharge be upgraded to honorable.

APPLICANT STATES: That all of his service was exemplary until he stabbed a person in self-defense.

In support of his application, the applicant submitted a copy of his DD Form 214 (Report of Separation from Active Duty) for the periods ending 28 January 1974 and 28 March 1978.

COUNSEL CONTENDS: That the applicant's submission, in conjunction with the official Army records, amply advance his contentions and substantially reflect the probative facts needed for equitable review.

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

He was released from active duty on 28 January 1974 after completing 3 years of honorable military service and transferred to the United States Army Reserve.

On 4 October 1974, the applicant reenlisted in the Army for a period of 3 years.

On 5 October 1974, the applicant was assigned to Company D, 864th Engineer Battalion, Presidio, San Francisco, California.

On 16 June 1975, the applicant assaulted a civilian patron in a bar by stabbing him several times with a knife. On 20 June 1975, the applicant was arrested for this assault.

On October 27, 1975, after a thorough pre-sentence investigation, the Adult Parole Department recommended that the Army consider keeping the applicant on active duty. On 28 October 1975, the applicant's unit commander, after reviewing the pre-sentence recommendation, recommended that separation action under the provisions of Army Regulation (AR) 635-206 not be initiated and that the applicant be retained on active duty.

On 28 October 1975, the applicant was sentenced to 3 years probation on condition that he serve 6 months in confinement under the San Francisco Work Furlough Program, carry no weapons, yield to warrants, undergo psychological and alcohol treatment, and remain under the supervision of the Adult Parole Department.

On 10 December 1975, after a re-evaluation of the applicant's records Headquarters, Presidio of San Francisco decided to initiate separation proceedings under the provisions of AR 635-206.

On 16 January 1976, the applicant underwent a psychiatric evaluation at Letterman Army Medical Center. The psychiatrist diagnosed the applicant with an Anti-social Personality Disorder and noted that he had a problem with alcohol abuse. On 21 January 1976, the applicant was cleared for any administrative action deemed appropriate by his chain of command.

On 19 February 1976, the applicant was notified of a pending separation action under AR 635-206, for civil court conviction. On 6 March 1976, the applicant acknowledged notification and requested consideration of his case by a board of officers. He elected not to submit a statement in his own behalf.

On 15 March 1976, a board of officers considered the applicant for elimination under the provisions of AR 635-206. The board of officers recommended the applicant be retained on active duty because this was his first offense and on the recommendation of his parole officer.

On 30 December 1976, the applicant was involved in another altercation in a bar; which resulted in him stabbing another person. The applicant was charged with assault with a deadly weapon.

On 20 May 1977, the applicant appeared in the San Francisco Municipal Court for a jury trial. The applicant was found guilty of the above civil charge and was sentenced to 1-year in the county jail with a projected release date of 18 February 1978.

On 8 June 1977, the applicant was notified of a pending separation action under the provisions of AR 635-206, for a civil court conviction and sentence to 1 year in the county jail.

On 14 July 1977, the unit commander recommended that he be eliminated from the Army because of his civil conviction and sentence to 1 year in jail. His unit commander also noted that this was the applicant's second time before a board of officers for the same type offense in 18 months.

On 25 November 1977, the applicant was notified that a board of officers was convening on 9 December 1977 to determine whether he should be discharged because of a civilian conviction before the expiration of his current term of service.

On 4 December 1977, the applicant submitted a statement in his own behalf to the board of officers. He stated that the Army was very important to him and his family; that he had a good service record; and that he wanted to remain in the Army.

On 24 January 1978, the board of officers recommended that the applicant be eliminated from the Army with a GD under the provisions of AR 635-206 by reason of civil court conviction.

On 17 February 1978, Headquarters, Presidio of San Francisco, California, notified the applicant that his discharge from the Army had been approved. However, before he could be discharged, he had to show proof that he had completed a separation physical within 6 months of his discharge. The applicant responded that he would report to Letterman Army Hospital for his separation physical once he was released from the custody of the California Correctional Center.

On 28 March 1978, the applicant was discharged from the Army with an under honorable conditions discharge after completing 2 years, 7 months, and 16 days of creditable military service on this enlistment and 5 years, 7 months, and 16 days total active service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion, and absence without leave, and other acts or patterns of misconduct.

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.

2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3. The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. Accordingly, the Board determined that the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable discharge.

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

__lls___ __bje___ __wdp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074569
SUFFIX
RECON
DATE BOARDED	20021217
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19780328
DISCHARGE AUTHORITY	AR 635-200, Chap 14
DISCHARGE REASON	A92.27
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.9405
2.
3.
4.
5.
6.