MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            21 January 1999 
	DOCKET NUMBER:   AC98-12815
                                              AR1998012247

	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. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Karen J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John P. Infante		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:  In effect, that his undesirable discharge be upgraded to at least a general discharge.

APPLICANT STATES:  That he was having marital problems at the time which made him behave the way he did and which led to his undesirable discharge.  He further states that that he there are reasons for what he did that could best be described by a therapist; however, he can offer no excuses for what he did.  He goes on to state that he is sincerely sorry for and offers his apologies for what he did, knowing that it is not enough for what he did.  He also states that he wishes he could take it all back but at 52 years of age he knows that it will never happen. He continues by stating that he regrets what he did every day and asks the Board to upgrade his discharge so that he can now walk a little taller, breathe a little easier, and feel a little less shame.  In support of his application he submits two letters of support and a background criminal check from the local sheriff’s office. 

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

The applicant enlisted in Evansville, Indiana on 22 November 1965 at the age of 20 for a period of 3 years and training as a construction machine operator.  He was married at the time of his enlistment.

He successfully completed his training and was transferred to Fort Belvoir, Virginia on 8 April 1966.

The applicant went AWOL on 1 June 1966 and remained absent until he was arrested by civil authorities on 7 August 1966.  He was returned to military control on 22 August 1966 and was confined to the post stockade until 12 September 1966.

The applicant went AWOL again on 14 September 1966 and remained absent until he was again arrested by civil authorities on 29 January 1967.  He was returned to military control on 5 February 1967 and was confined to the post stockade until 16 March 1967.

The applicant was convicted by a special court-martial on 7 March 1967 of being AWOL from 1 June to 22 August 1966 and from 14 September 1966 to 29 January 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  The convening authority approved the sentence but suspended that portion of the sentenced pertaining to confinement at hard labor for a period of 6 months unless sooner vacated.  The applicant was then placed on orders to Korea with a report date of 9 April 1967.

The applicant again went AWOL on 9 April 1967 and remained absent until he was arrested by civil authorities on 28 September 1967.  He plead not guilty to second degree burglary and guilty to third degree burglary.  He was sentenced to 1 year of confinement in the Indiana State Farm by the circuit court of Evansville, Indiana.

The facts and circumstances surrounding the applicant administrative discharge are not present in the available records; however, the records show that the applicant was notified that he was being considered for separation under the provisions of Army Regulation 635-206 based on his conviction by a civil court.  The applicant signed an election statement indicating that he waived consideration of and a personal appearance before a board of officers, that he elected not to submit a statement in his own behalf, and that he did not intend to appeal his conviction for burglary.

The applicant was discharged under other than honorable conditions on 6 March 1968 under the provisions of Army Regulation 635-206, due to conviction by civil authorities.  He had served 6 months and 26 days of total active service and had 619 days of lost time due to AWOL and confinement.

The applicant applied to the Army Discharge Review Board (ADRB) on 24 February 1971 for an upgrade of his discharge.  He contended at that time that he was attending a technical college at the time and desired an upgrade of his discharge to avoid having complications finding a job after graduation.  The ADRB determined that he had been properly discharged and denied his appeal on 13 June 1972.

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.  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 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 the aforementioned requirement.
2.  In the absence of evidence of the contrary, it must be presumed that 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 therefor were appropriate considering all of the available facts of the case.

4.  The applicant’s contentions and supporting statements 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. 

5.  Although the applicant has not contended that his discharge was in error or was unjust, he has failed to convince the Board through the evidence submitted or the evidence of record that his discharge should be upgraded.

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

__kn____  ___jpi ___  __fe ____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12815/1998012247	
SUFFIX		
RECON	 	
DATE BOARDED	1999/01/21	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/03/06	
DISCHARGE AUTHORITY	AR 635-206 	
DISCHARGE REASON	Conv by civil auth	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  144.6100		
2.		
3.		
4.		
5.		
6.