MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002074759

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Eric N. Andersen		Member
Mr. John T. Meixell		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 discharge under other than honorable conditions be upgraded to general.

APPLICANT STATES: In effect, that he was discharged on 8 March 1977 and should have gotten at least a general discharge. He contends that the case of Roelofs v. Secretary of the Air Force states that if you do not have military duty when you are apprehended by civilian authorities you should get a general discharge.

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

The applicant enlisted on 22 May 1973 for a period of 4 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (infantry).

On 3 January 1975, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of restriction and extra duty.

On 17 June 1975, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 11 July 1975, nonjudicial punishment was imposed against the applicant for being incapacitated for duty by indulgence of intoxicating liquor. His punishment consisted of a reduction to E-2, a forfeiture of pay, restriction and extra duty.

On 24 October 1975, nonjudicial punishment was imposed against the applicant for altering, with intent to deceive, an official document (Air Force Form 569), behaving with disrespect toward a superior commissioned officer and offering violence against a superior commissioned officer. His punishment consisted of a reduction to E-2 and detention of 14 days pay for one month.

The applicant was arrested on 21 July 1976 by civil authorities for burglary. On 31 August 1976, he pled guilty and was sentenced to 10 years in the state penitentiary.

The applicant was in the process of being considered for a medical board at the time of his arrest and civil conviction. The medical board concluded that the applicant was not fit for retention and should be medically processed for discharge. The medical board also determined that the applicant’s incapacitating medical condition was not a direct or substantial contributing cause of his misconduct.


On 8 November 1976, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 for misconduct due to his civil conviction for first degree burglary. The unit commander decided, in accordance with paragraph 8b of Army Regulation 635-206, to proceed with processing under the provisions of that regulation.

On 8 November 1976, the applicant requested consideration of his case by a board of officers.

On 13 December 1976, the applicant appeared with counsel before a board of officers convened to consider his retention in the service. The board recommended that the applicant not be retained and that an undesirable discharge was warranted. The approval authority approved the board’s recommendation.

Accordingly, on 8 March 1977, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-206 for misconduct due to being convicted by a civil court during his current term of active military service. He had served 3 years, 1 month and 26 days of total active service with 231 days lost due to civil confinement.

On 25 June 1979, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade to general.

On 3 February 1988, the Army Board for Correction of Military Records (ABCMR) considered and denied the applicant’s request for a discharge upgrade to honorable. A request for reconsideration was reviewed on 20 May 1992 and the staff determined that the applicant had not provided any new evidence and his request was closed without further action. Another request for reconsideration was reviewed on 25 August 1998 and the staff determined that the applicant had not provided any new evidence and his request was closed without further action.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct. Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court. An undesirable discharge was normally considered appropriate.

Paragraph 8b of Army Regulation 635-206 states that where the medical board proceedings indicate that the individual does not meet retention medical standards and the incapacitating medical condition is not the direct or substantial contributing cause of the individual’s misconduct, the unit commander will determine whether the individual will be processed further under this regulation or will be processed for separation under medical jurisdiction.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

In the Roelofs v. Secretary of the Air Force case, a service member was separated with an undesirable discharge based on a civilian court conviction for possession of heroin with intent to distribute. Roelofs argued that the Secretary of the Air Force lacked statutory authority to promulgate the regulation relied upon to issue him a less than Honorable Discharge, and that the regulation violated the Due Process Clause of the Fifth Amendment. After a hearing, the discharge review board upgraded the discharge to general, but not to honorable, and offered no explanation for its decision. The military correction board denied his application without a hearing and did not give its findings or its reasoning. The district court denied his claims that the Secretary lacked statutory authority to promulgate the discharge regulation, and that the regulation violated the Due Process Clause of the Fifth Amendment. On appeal, the court affirmed and rejected the service member’s challenge to the validity of the discharge regulations. The court reasoned that the presumption that an undesirable discharge would result from a civilian conviction was warranted if it resulted in deficiency in performance or had a direct impact upon military service. The court remanded, reasoning that it remained for the appropriate authority to provide the statement of grounds mandated by the Administrative Procedure Act. The court affirmed in part, rejecting the serviceman’s challenge to the validity of the relevant discharge regulations. However, the court remanded in order to permit reconsideration by the appropriate Air Force authority and with a requirement that, if an Honorable Discharge was denied, such denial would be accompanied by the statement of reasons.

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 Roelofs decision cited by the applicant is not relevant to his case. In this case, there was no ruling that the undesirable discharge was invalid. The outcome states, essentially, that there should have been an explanation, however brief, as to why the undesirable discharge was given. The Air Force should have provided one when it issued the discharge and the military correction board should have provided one when it turned down his application. Neither provided their reasoning. The court remanded the case for that purpose and that purpose alone.

2. The Board considered the applicant’s contention that he should have gotten at least a general discharge. However, the Board reviewed the applicant’s record of service which included four nonjudicial punishments and 231 days of lost time and determined that his military record was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

3. The applicant’s administrative separation was accomplished in compliance with applicable regulations.

4. The type of discharge directed and the reasons for separation are appropriate considering all the facts of the case.

5. The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

6. 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.

7. 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

MHM___ ENA_____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074759
SUFFIX
RECON
DATE BOARDED	20021105
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19770308
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	Misconduct due to being convicted by a civil court during his current term of active military service
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.