MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 November 1998 
	DOCKET NUMBER:   AC98-11378

	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. Joyce A. Wright		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Robert W. Garrett		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 a general discharge.

APPLICANT STATES:  In effect, that he was not in his right mind at the time because he was physically and psychologically addicted to heroin.  He also stated that at that time their was no treatment for his condition.
He is currently in a rehabilitation group of AA (alcoholic anonymous) at the VA and is a current member of an organized Post Traumatic Stress Disorder (PTSD) group.

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

He enlisted on 17 January 1966 for a period of 4 years.  He successfully completed his training as a heavy vehicle driver and received excellent conduct and efficiency ratings.  He continued to served until he was honorably discharged on 17 January 1969 for immediate reenlistment on 18 January 1968 
for a period of 6 years.

On 1 October 1969, the applicant went AWOL and remained absent until 
29 October 1969.

On 18 December 1969, the applicant went AWOL again and remained absent 
until 11 January 1970. 

On 13 October 1970 the applicant went AWOL and remained absent until he
was arrested and apprehended by civilian authorities on 16 June 1971 in
Los Angeles, California.  He was held on charges of a bank robbery stemming from a Federal Grand Jury indictment returned on 8 December 1970 in Atlanta, Georgia.  He was later confined to the Los Angeles County Men’s Central Jail.

On 21 October 1971, the applicant was found guilty of bank robbery and was sentenced to 15 years in the Federal Penitentiary, in Fort Leavenworth, Kansas.

On 18 September 1974, the commander notified the applicant by mail that he
was being considered for possible elimination from the service under the provisions of Army Regulation 635-206, due to his conviction by civil authorities.

After consulting with counsel, he requested consideration of his case by, 
and appearance before, an administration separation board.  He also requested representation by counsel and elected not to submit a statement in his own 
behalf.

On 6 March 1970, the commander submitted his recommendation to 
eliminate the applicant under the provisions of AR 635-206, due to his
conviction by civil authorities.

The administrative separation board convened on 2 May 1975.  The applicant
was not present but was represented by counsel, who was afforded full opportunity to present evidence in the applicant’s behalf. 

The board carefully considered the evidence before it and finds; that the applicant is undesirable for further retention in the military due to his conviction by civil court.  

The appropriate authority approved the findings and recommendations of the
separation board on 19 May 1975 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged on 9 June 1975, under other than honorable
conditions under the provisions of Army Regulation 635-206, paragraph 37,
for misconduct - civil conviction.  He had served 4 years, 7 months, and 4 days of total active service and had 1754 days lost time due to AWOL and confinement prior to his scheduled expiration term of service (ETS) and 508 days of lost time due to confinement subsequent to his normal ETS date. 

A review of the applicant’s records failed to reveal that he was addicted to
any drugs.  

There is no evidence that the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge within its 15-year statute of
limitations.

Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 37 of the regulation provided, in
pertinent part, the convening authority is authorized to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the US or its territorial possessions.  An undesirable discharge was normally considered appropriate.  

Army Regulation 635-200 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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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 applicant’s administrative separation was accomplished in compliance
with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, his
AWOL and conviction by civil authorities were too serious, when compared to his overall record, for equitable relief to be appropriate.

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

___gp___  __rwg___  ___cla___  DENY APPLICATION

						Loren G. Harrell
						Director