MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  6 May 1999                         
	DOCKET NUMBER:   AC98-09415
                                              AR1999015196

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Carol Jo Suiter		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 (UD) be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that the civil conviction was in error; that he was not the one who robbed the liquor store; that he gave a couple of people a ride to the liquor store; that one of the people riding with him robbed the store; that he was convicted because the robber was riding in his car.

COUNSEL CONTENDS:  In effect, the discharge resulted from a civil court conviction alleging the former service member (FSM) directly participated in an over-the-counter robbery of a liquor store.  The FSM alleges he remained in his vehicle not knowing that a crime was being committed inside the store.  Counsel asks that the Board review all circumstances and reports and render a fair and equitable decision.

EVIDENCE OF RECORD:  The applicant's Official Military Personnel File (OMPF) was partially burned in the National Personnel Records Center fire of 1973.  However, the Information herein was obtained from the OMPF.

The applicant enlisted in the Regular Army (RA) on 16 July 1948 for 2 years and training in military occupational specialty (MOS) 0055 (Clerk General).

On 22 October 1948, the applicant was assigned to Fairbanks, Alaska.  On 29 March 1950, military authorities apprehended him on suspicion of robbery of a liquor store off post.  He confessed to the robbery and provided evidence to military authorities to support his confession.  He stated that he inserted his hands in his coat pockets, and while so inserted, placed his hands on the counter as if to imply that he had a gun in his pocket, and ordered the liquor store attendant to raise his hands.  He then stole approximately $20 in silver coins.

On 14 April 1950, the applicant appeared with counsel in the District Court, Fairbanks, Alaska.  He was advised of the 16 February 1950 robbery charge against him and the rights available to him.  He pled guilty to the charge and he waived in open court his right to prosecution by indictment and consented to proceedings by information only.  

On 17 April 1950, the applicant was convicted of robbing the liquor store.  He was sentenced to civilian confinement at hard labor for 2 years.  He was confined at the Federal Correctional Institute in Englewood, Colorado.  

On 20 April 1950, the applicant's commander recommended to the Commanding General, Headquarters, United States Army, Alaska that the applicant be discharged from the service under the provisions of Army Regulation 615-366, for conviction by civil authorities.

On 24 April 1950, the Commanding General, Headquarters, United States Army, Alaska approved the recommendation and directed that the applicant be separated under the provisions of Army Regulation 615-366, for conviction by civil authorities with a UD. 

On 17 July 1950, the applicant was separated with a UD under the provisions of Army Regulation 615-366 for conviction by civil court.  He had completed a total of 1 year, 8 months and 13 days of active military service and he had 110 days lost time due to being in confinement.

There is no evidence that the applicant ever applied to the Army Discharge Review Board.

Army Regulation 615-366, in effect at the time, set forth the basic authority for the separation of enlisted personnel for reasons of fraudulent entry, AWOL, desertion, or conviction by a civil court.  The regulation provided that members guilty of the above misconduct were subject to separation.  An undesirable discharge was directed.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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.  Evidence contained in the record clearly indicates the applicants pled guilty to the charge of robbery, and he was sentenced and confined as a result of that plea of guilty. The applicant has provided no evidence to the contrary.

3.  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

FNE____  EWL____  CJS_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-09415/AR1999015196	
SUFFIX		
RECON		
DATE BOARDED	19990506	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19500717	
DISCHARGE AUTHORITY	AR 615-366	
DISCHARGE REASON	Conviction by civil court	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	In effect, that he did not rob the liquor store.  Someone riding with him robbed the liquor store.  He remained in the car, and did not know the crime was being committed.	
2.		
3.		
4.		
5.		
6.