MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 December 1998                   
	DOCKET NUMBER:   AC98-12139

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. Thomas B. Redfern, III		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 under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES:  He served in Vietnam.  He was only 9 months from completing his second period of service.  He feels the discharge was harsh.  He is losing his VA benefits because of it.  He submits a letter of support.

COUNSEL CONTENDS:  That the applicant’s claim, in conjunction with his official military records, amply advance his contentions and reflect the probative facts needed for equitable review.  Counsel also notes that he has submitted supporting statements indicating post-service accomplishments and asks that consideration be given to a clemency upgrade.

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

He enlisted in the Regular Army on 4 January 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 13A (Basic Field Artilleryman).  He was discharged on 16 September 1968 for the purpose of immediately reenlisting on 17 September 1968.

The applicant separated on temporary records and so it is not known when he arrived in Vietnam.

On 7 November 1969, while in Vietnam, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 24 October - 6 November 1969.

The applicant’s  Personnel Qualification Record shows he departed AWOL       19 December 1969 - 13 September 1970; in confinement 14 September 1970; departed AWOL 15 - 29 September 1970; and in civil confinement 30 September 1970 - 2 February 1972.

The discharge proceedings are not available.  Information in the Army Discharge Review Board (ADRB) proceedings reveal he was prosecuted for two counts of armed robbery.

On 2 February 1972, he was discharged, with a discharge UOTHC, in pay grade E-1 under the provisions of Army Regulation 635-206 for civil conviction.  He had completed 2 years, 11 months and 14 days of creditable active service and had 637 days of lost time plus 140 days subsequent to his normal expiration term of service.

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).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

On 18 October 1976, the ADRB denied the applicant’s request for an upgraded discharge.

On 11 September 1978, the ADRB again denied his request for an upgraded discharge.

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 to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  While the Board has taken cognizance of the applicant’s efforts to better himself, this factor does not warrant the relief requested

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

JH______  FNE_____  TBR_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12139	
SUFFIX		
RECON		
DATE BOARDED	19981209	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	720202	
DISCHARGE AUTHORITY	AR 635-206  .  .  	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.