MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            15 December 1999
	DOCKET NUMBER:   AR1999018870

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Mark D. Manning		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 a general discharge.

APPLICANT STATES:  In effect, that the type of discharge that he received is too harsh considering the nature of his offense.  In support of his appeal he submits a copy of a Disposition Form (DA Form 2496) which shows that he was being considered for possible elimination under the provisions of Army Regulation 635-200, chapter 14 for fraudulent entry which normally carries the issuance of a General Discharge Certificate.

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

On 28 December 1973, he enlisted in the Army for 2 years in the pay grade of 
E-1.  At the time of his enlistment, he signed a Statement of Enlistment (DA Form 2286) indicating that he was not currently nor had he ever been on parole, probation supervision, under suspended sentence, or awaiting final action on charges against him.  He also signed a statement acknowledging that he was informed that he would be the subject of disciplinary action under the UCMJ and/or discharge from the service under other than honorable conditions if he concealed or misrepresented any information regarding his record of arrests or convictions or juvenile court adjudication.

On 4 March 1974, the applicant went AWOL and he was dropped from the rolls for desertion on 2 April 1974.  The available records show that at the time he went AWOL he was pending investigation for fraudulent entry because it had been determined that he was still on parole for an offense prior to his enlistment in the Army.  He remained absent until he returned to military control on 30 April 1974.

On 19 June 1974, the applicant was convicted by a special court-martial of the aforementioned AWOL.  His sentence consisted of confinement at hard labor and a reduction in pay grade.

The evidence of record shows that the applicant was AWOL from 15 June 1974 until 16 June 1974.  However, the record is void of any punishment being imposed against him being AWOL.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge, DD Form 214, indicates that the applicant was discharged on 13 September 1974, under the provisions of Army Regulation 635-200, for misconduct – fraudulent entry.  He had 4 months and 6 days of total active service and he had 130 days of lost time due to AWOL and confinement.  He was issued an Undesirable Discharge Certificate. 
A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for fraudulent entry.  It states, in pertinent part, that upon receipt of the recommended action, the commander exercising general court-martial jurisdiction will determine whether the fact of fraudulent entry has been verified and proven.  If the fraudulent entry is verified, the general court-martial authority will also direct discharge and issuance of an Honorable or a General Discharge Certificate, direct discharge and issuance of an Undesirable Discharge Certificate, provided the individual has waived his rights to present his case before a board of officers or direct that a board of officers be convened to determine whether the individual should be discharged.  The same regulation also states that if a board of officers recommends discharge, the type of discharge certificate to be issued will be specified and an Undesirable Discharge Certificate may be issued if 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.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

2.  The evidence of record shows that prior to going AWOL he was pending investigation for fraudulent entry because he was on parole at the time of his enlistment in the Army.  Although the DA Form 2496 that he submitted in behalf of his appeal states that the issuance of a General Discharge Certificate is normally considered appropriate for fraudulent entry, the applicable regulation also provides for the issuance of an undesirable discharge.  There is no evidence of record nor has the applicant submitted any evidence to show that what the Army did in his case was incorrect.  In the absence of evidence to the contrary, it is reasonable to presume that what the Army did in his case was correct.

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

__mdm __  __tnk ___  __eb____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018870	
SUFFIX		
RECON		
DATE BOARDED	1999/12/15	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/09/13	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	626	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  651	A63.00/144.6300	
2.		
3.		
4.		
5.		
6.