MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 July 1999
	DOCKET NUMBER:   AR1998013825

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson		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 undesirable discharge be upgraded to honorable or at least a general discharge.

APPLICANT STATES:  In effect, that he served honorably in Vietnam and received a letter of appreciation for his work.  He further states that when he departed Vietnam on a 30-day leave, he took an additional 2 weeks of unauthorized leave before he turned himself into authorities at Fort Meade, Maryland.  He goes on to state that he was confined by civil authorities from 7 July 1970 to 8 February 1971 due to a conviction of distributing drugs and contends that both his AWOL and jail sentences were the result of a young immature man who was reacquainted with civilization after being asked to fight a war.  He continues by stating that after his release from jail he maintained steady employment until he was placed on Social Security disability in 1987 and believes that he should receive a discharge upgrade.  In support of his application he submits a copy of a letter of appreciation he received in Vietnam for his work as a construction machine operator.

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

The applicant enlisted in Lakewood, California on 1 November 1967 for a period of 3 years and training as an engineer heavy equipment operator. 

He successfully completed his training and was transferred to Vietnam on 16 April 1968.  He was promoted to the pay grade of E-4 on 21 October 1968.

On 24 January 1969 nonjudicial punishment was imposed against him for the wrongfully possession of marihuana.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

The applicant departed Vietnam on 15 April 1969 with orders transferring him to Fort Meade with a report date of 26 May 1969.  The applicant failed to report as ordered and was reported as AWOL from 26 May 1969 until he reported to military authorities at Fort Meade on 24 June 1969.

He was convicted by a special court-martial on 17 October 1969 of being AWOL from 26 May 70 23 June 1969.  He was sentenced to a reduction to the pay grade of E-1 and a forfeiture of pay.

On 7 July 1970 he was arrested in Annapolis, Maryland by the Maryland State Police Narcotics Detail for possession and sale of cocaine.  He was convicted on 3 September 1970 of distributing cocaine and was sentenced to confinement for 2 years in a Maryland Correctional Facility.

On 8 January 1971 the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-206 based on his conviction by civil authorities.  The applicant provided a written statement to the effect that he did not intend to appeal his civil conviction.

The appropriate authority approved the request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 9 February 1971 under the provisions of Army Regulation 635-206, due to conviction by civil authorities.  He had served 2 years, 7 months, and 4 days of total active service and had 245 days of lost time due to AWOL and confinement by civil authorities.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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 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.

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

3.  The applicant’s contentions and supporting documents 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.

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

__fe ____  ___lem__  __mvt___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013825	
SUFFIX		
RECON		
DATE BOARDED	1999/07/28	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/02/09	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627 	144.6100/A61.00/CONV BY CIVIL AUTH	
2.		
3.		
4.		
5.		
6.