MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            26 May 1999                            
	DOCKET NUMBER:   AR1999014910

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Barbara J. Ellis 		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 be upgraded to general.  

APPLICANT STATES:  In effect, that he was not involved in the robbery which resulted in his civil conviction and the basis for his discharge from the Army.  He contends that two soldiers committed the robbery and because he was in the same place at the same time the white restaurant owner assumed they were together because they were in their uniforms and they were African American.  He goes on to state that the two soldiers were not his friends, that they admitted the applicant did not partake in the robbery and they were together because the applicant had passed out and they went into the restaurant to use the phone to get help for him.  He also contends that due to racial discrimination (a small southern town in 1962 and all white jury) he did not receive a fair trial.  In support of his application, he submits a VA Form 21-4138 (Statement in Support of Claim), dated 27 April 1998, which is his personal account of the circumstances surrounding the robbery.

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

The applicant was inducted on 16 April 1962 and underwent basic training at Fort Knox, Kentucky.    

The applicant’s personnel records contain a letter from the Office of the Adjutant General, dated 4 June 1962, which indicates that he was suspected of fraudulent entry following a report from the Federal Bureau of Investigation (FBI).  The FBI report shows eight arrests prior to the applicant’s entry into the Army.  The letter also directs that an investigation be conducted to ascertain all the facts regarding the offenses shown and final disposition of any charge(s). 

A subsequent FBI report shows the applicant was arrested for armed robbery by civil authorities in Elizabethtown, Kentucky, on 15 September 1962.  He was held in civilian confinement pending trial.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records indicate that on 
7 June 1963 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-206 for misconduct due to being convicted by a civil court during his current term of active military service.  He had served
4 months and 29 days of total active service and had 266 days lost time due to civilian confinement.

There is no evidence 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 for misconduct.  Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was 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 to the contrary, it is presumed that the discharge proceedings were in accordance with law and regulations applicable at the time. 

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, there is no evidence available to the Board, and the applicant has provided no evidence, to support his contention of racial discrimination or that the actions taken in his case were in error or unjust.

4.  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.

5.  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

MDM____  AAO____  BJE_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014910	
SUFFIX		
RECON		
DATE BOARDED	19990526	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19630607	
DISCHARGE AUTHORITY	AR 635-206   	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	189	
2.		
3.		
4.		
5.		
6.