MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 January 1999                   
	DOCKET NUMBER:   AC98-12610
				   AR1998013868

	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. Thomas N. Kuhn		Chairperson	
	Mr. Walter T. Morrison		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 discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.

APPLICANT STATES:  He served his tour in Vietnam and acquired a heroin habit.  He was convinced to reenlist while in Vietnam on the condition that he would not have to serve there anymore.  Once he received his reenlistment orders, however, he found out he was being assigned to Vietnam again.  At that time he went AWOL.  He was young and did not know any better.  He submits documents in support of his request.

COUNSEL CONTENDS:  In effect, that the applicant was young and it is not unusual for a person so young to make improper decisions.  In view of this and the fact he has become a productive citizen, counsel asks that his discharge be upgraded as requested.

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

He was born on 11 November 1951.  He completed 10 years of formal schooling. He enlisted in the Regular Army on 13 August 1969.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  He arrived in Vietnam on 9 January 1970 where he served as a grenadier and as a wheel vehicle repairman.

On 29 May 1970, the applicant requested discharge and immediate reenlistment for the “In-Country RECAP…with OJT 64B20.”  Also on 29 May 1970, he requested a 30-day reenlistment leave.  On this request he stated “I agree to serve at least 6 months in RVN upon completion of my Reenlistment Leave.”

The applicant reenlisted effective 30 May 1970.  He departed on leave on or about November 1970.  His duty status was changed to absent without leave (AWOL) on 6 January 1971.  On 28 July 1971 it was changed to confined in the hands of civil authorities.

On 28 July 1971, the applicant was sentenced by the Circuit Court of the County of Macomb, MI to a minimum of 2 years and a maximum of 10 years imprisonment for unarmed robbery and larceny from a person, the offenses committed on 4 November 1970.

On 24 November 1971, discharge proceedings under the provisions of Army Regulation 635-206, Civil Conviction, were initiated.  On 14 December 1971, the applicant acknowledged receipt of the notification of the proposed discharge 

action.  He waived consideration of his case by a board of officers, waived appointment of military counsel, did not submit a statement in his own behalf, and stated that he did not intend to appeal his conviction.

On 2 February 1972, the appropriate authority approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

On 23 February 1972, the applicant was discharged, in pay grade E-1, with a discharge UOTHC under the provisions of Army Regulation 635-206, Civil Conviction.  He had completed 1 year, 4 months and 17 days of creditable active service and had 420 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).  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.

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 Board does note that the applicant was 17 years of age at the time of his initial enlistment.  He was 19 years old at the time he reenlisted, however, and he acknowledged on his request for reenlistment leave that he would have to serve an additional 6 months in Vietnam after the completion of that leave.

3.  The Board also notes that the applicant was not discharged for misconduct (AWOL).  He was discharged as a result of a civil conviction for which he stated that he did not intend to appeal.  The type of discharge directed and the reasons therefor were and are still appropriate considering all the facts of the case.

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

TNK_____  WTM____  MVT_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12610/AR1998013868	
SUFFIX		
RECON		
DATE BOARDED	19990113	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR 635-206.  .  .  .  .  	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.