MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 11 September 2003
                  DOCKET NUMBER: AR2003088302

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		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)

---

APPLICANT REQUESTS: That his general discharge be upgraded to honorable.

APPLICANT STATES: That his discharge should be upgraded because at the time of his discharge, his knowledge of the English language was limited. A year prior to his dismissal he was convicted by civil authorities and again his lack of knowledge prevented himself from properly defending himself. He goes on to state that when the Army wanted to discharge him dishonorably, he appeared before a board of officers and was given a chapter 5 discharge, under honorable conditions. He further states that he was wrongfully discharged from the Army.

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

He enlisted in San Juan, Puerto Rico, on 21 January 1974, for a period of 3 years, training as a supply specialist and assignment to the 82^nd Airborne Division at Fort Bragg, North Carolina. He successfully completed his training and was transferred to Fort Bragg.

In November 1974, he was arrested by civil authorities for cutting a man with a knife (aggravated assault). He plead guilty and was convicted in January 1975. He was sentenced to pay a fine ($300.00) and was placed on probation for 3½ years.

On 12 August 1975, nonjudicial punishment (NJP) was imposed against him for sleeping on guard duty. His punishment consisted of a forfeiture of pay.

On 26 August 1975, NJP was imposed against the applicant for two specifications of failure to go to his place of duty and being absent without leave (AWOL) from 23 July to 24 July 1975. His punishment consisted of extra duty and restriction for 30 days and a forfeiture of pay.

On 10 September 1975, the applicant was involved in a physical altercation in a civilian establishment in Fayetteville, North Carolina, which resulted in him being knocked unconscious and receiving a broken jaw. He was seen in the emergency room at Fort Bragg on 12 September 1975 and was hospitalized. During the course of his hospitalization he was uncooperative and cut the wires holding his jaw together twice. He was arrested for drunk driving on 5 October 1975, while assigned to the medical holding detachment and was discharged on 9 October 1975, prior to completion of his treatment, due to his uncooperative behavior.

On 16 October 1975, the applicant's commander deemed the applicant's injury to be not in the line of duty because he was restricted to the battery area at the time he was injured off post. He determined that a line of duty (LOD) investigation was required. A LOD investigation was conducted which found that the injury was not in the line of duty due to the applicant's own misconduct.
On 22 October 1975, NJP was imposed against the applicant for striking another soldier in the head with a pool cue. His punishment consisted of a forfeiture of pay (suspended for 90 days) and extra duty.

On 21 November 1975, the applicant's commander initiated a recommendation to bar him from reenlistment based on his disciplinary record, poor duty performance, substandard personal appearance and his involvement in incidents of a discreditable nature with civil and military authorities. The applicant elected not to submit matters in his own behalf and the bar to reenlistment was approved by the battalion commander.

On 1 December 1975, the commander initiated action to separate him from the service under the provisions of Army Regulation 635-206, due to conviction by civil authorities. The applicant elected to exercise his right to appear before a board of officers and to be represented by military counsel.

The applicant appeared before board of officers on 9 January 1976, represented by counsel. After hearing testimony from the chain of command, the board heard an unsworn statement from the applicant in which he asserted that he did not stab the individual he was accused of stabbing and that he plead guilty to the stabbing charge on the advice of his civilian attorney. He also asserted that the judge put him on probation because he felt that he was not directly involved in the crime. The board of officers found that the applicant should be discharged and recommended that he be discharged under honorable conditions. The convening authority approved the findings and recommendation of the board of officers on 30 January 1976 and directed that he be furnished a General Discharge Certificate.

Accordingly, he was discharged under honorable conditions on 24 February 1976, under the provisions of Army Regulation 635-206, due to his conviction by civil authorities. He had served 2 years and 29 days of total active service and had 5 days of lost time due to AWOL and confinement by civil authorities.

On 15 December 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined that his discharge was both proper and equitable and denied his appeal on 5 July 1979.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation. An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, currently in effect, 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, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL. A discharge under other than honorable conditions is still normally considered appropriate.

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 violations or procedural errors, which would tend to jeopardize his rights.

3. Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

4. The applicant’s contentions have been noted by the Board. However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge to fully honorable.

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

__cjp____ __jm____ __sk____ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003088302
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/11
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1976/02/24
DISCHARGE AUTHORITY	AR635-206
DISCHARGE REASON	Civ conv
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 627	144.6100/a61.00
2.
3.
4.
5.
6.