MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:              17 June 1998                
	DOCKET NUMBER:      AC98-07776

	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.  The following members, a quorum, were present:

	Mr.	Curtis W. Barbee Jr.		Chairperson	
	Ms.	Karen L. Wolff		Member	
	Mr.	Edward Williamson		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Joseph A. Adriance		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 (HD).

APPLICANT STATES:  In effect, that his ability to serve was impaired by his youth and immaturity; his marital problems; and his use of alcohol.  Additionally, he contends that his command abused its authority by giving him a bad discharge because he had attempted to get a hardship discharge which was unfairly denied.

COUNSEL CONTENDS:  Counsel provided assistance in obtaining records and in preparation of the packet; however, they advanced no additional contentions or issues.

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

On 18 September 1962 the applicant was inducted into the Army of the United States for a period of 2 years at the age of 18.

The applicant’s record documents that the highest grade he held while on active duty was private E-1 and contains no acts of valor, achievement, or service warranting special recognition.  However, the record does include an extensive record of disciplinary infractions.

On 14 march 1963 the applicant was tried by special court-martial for violation of Article 86 of the UCMJ for being AWOL from 3 to 20 January 1963.  He was found guilty of the offense, and sentenced to confinement at hard labor for
2 months and to forfeit $25.00 per month for 2 months.

On 16 August 1963  the applicant was again tried by special court-martial for violation of Articles 86 and 134 of the UCMJ.  The first charge was for being AWOL from 17 July to 20 July 1963, and the second charge was for being disorderly at a military police station on 20 July 1963.  He was found guilty of both charges and sentenced to confinement at hard labor for 2 months, and to forfeit $28.00 per month for 2 months.

On 2 April 1964 the applicant was tried and convicted of grand larceny by the New York State Supreme Court of Kings County, in the Borough of Brooklyn, in the City of New York.  The resultant sentence was for  one (1) to three years 
(3) confinement at Rikers Island, in the Bronx, New York.

On 13 May 1964 the applicant’s unit commander completed a statement recommending the applicant be separated, under the provisions of Army Regulation 635-206, and indicated the applicant was currently being confined by civil authorities.  On 4 May 1964 a letter from the New York State Supreme Court, Kings County verified that the applicant had failed to submit a motion for appeal, and confirmed that the time allotted to appeal the conviction had now expired. 

On 27 May 1964 the appropriate authority directed the applicant’s discharge with a UD, under the provisions of AR 635-206.  Accordingly, on 3 June 1964 the applicant was discharged after completing 8 months and 25 days of active military service, and accruing 357 days of time lost due to AWOL and confinement.

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

Army Regulation 635-206, then in effect, provided in pertinent part for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.

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 evidence of record and the independent evidence submitted by the applicant does not support his contentions that his youth and immaturity, marital problems; or alcohol related problems mitigate his misconduct sufficiently to warrant an upgrade of his discharge.  Additionally, there is no corroborating evidence to support the applicant’s contentions that he was unfairly denied a hardship discharge, or that his command abused its authority in processing his discharge.  The evidence of record shows that the applicant was discharged, under the provisions of AR 635-206, for conviction by a civil court.  The character of the discharge is commensurate with his overall record.  The conviction by civil authorities, to include the applicant’s failure to appeal, obligated  military authority to consider the applicant for discharge.  

2.  The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  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.

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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director