MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 February 1999                   
	DOCKET NUMBER:   AC98-12818
				   AR1998013822

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Mark D. Manning		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 discharge be upgraded to honorable.

APPLICANT STATES:  He had to return to Kentucky to get married.  His wife-to-be was ill and he had to get there.  He was young and in love.

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

He enlisted in the Regular Army on 28 May 1970.

He was in pre-trial confinement from 22 August – 4 November 1970.  On             5 November 1970, he was convicted by a special court-martial of assaulting a military policeman by hitting him with his fist.  He was sentenced to 30 days confinement and to forfeit ½ of his basic pay for 2 months.

The applicant completed advanced individual training and was awarded military occupational specialty 13A (Field Artilleryman).

On 17 March 1971, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 1 – 15 March 1971.

The applicant completed a mental status evaluation and was found to be mentally responsible, able to distinguish right from wrong and able to adhere to the right and had the mental capacity to understand and participate in board proceedings.

A psychiatric evaluation found the applicant had no disqualifying mental or physical disease or defect sufficient to warrant discharge through medical channels and was psychiatrically cleared for any administrative or disciplinary action.

On 3 July 1971, the applicant was advised that he was being considered for separation for fraudulent entry for concealing a prior civil conviction (for indecent exposure).  He was advised by counsel of the basis for the action and waived consideration of his case by a board of officers, waived personal appearance before such a board, waived representation by counsel and did not submit a statement in his own behalf.

On 13 July 1971, the applicant was convicted by a special court-martial of being 
AWOL from 3 – 28 May 1971 and from 3 – 6 June 1971.  He was sentenced to confinement at hard labor for 4 months (suspended) and to forfeit $25 pay for     5 months.

On 2 August 1971, the appropriate commander approved the recommendation and directed the applicant be furnished an Undesirable Discharge Certificate.

On 5 August 1971, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206, fraudulent enlistment, with a discharge under other than honorable conditions.  He had completed 7 months and 25 days of creditable active service and had 142 days of lost time.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). 

On 5 November 1973, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

On 26 July 1977, the ADRB reviewed the applicant’s discharge under the Department of Defense Special Discharge Review Program (SDRP).  The ADRB found that he met the secondary criteria (age, general aptitude and length of service at the time of discharge, plus personal problems that may have contributed to the acts which led to the type of discharge) and upgraded his discharge to a general under honorable conditions.

On 4 April 1978, the ADRB voted not to affirm the applicant’s upgraded discharge.  It noted that his record did not reflect service that could be characterized under honorable conditions under the procedures that involved the conventional review under the Uniform Standards.

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.  The ADRB upgraded the applicant’s discharge to a general discharge under honorable conditions under the SDRP on 26 July 1977.  He has provided no additional evidence to show that his discharge should be further upgraded to honorable.

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

__SAC___  __FKM___  __MDM___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12818/AR1998013822	
SUFFIX		
RECON		
DATE BOARDED	19990203	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19710805	
DISCHARGE AUTHORITY	AR .635-206 .  .  	
DISCHARGE REASON	A62.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.