MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            13 May 1999 
	DOCKET NUMBER:   AR1999020903

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.,		Chairperson	
	Mr. Samuel Calderon		Member	
	Mr. Kenneth L. Wright		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 honorable or under honorable conditions.

APPLICANT STATES:  He states that he was 18 years old at the time of his civil conviction which led to his discharge.  He believes that if his sentence had been less than 180 days he would have been allowed to stay in the Army.

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

He enlisted and entered active duty on 10 June 1963 at 17 years and 4 months of age.  He completed training as an armor crewman and was assigned to Germany. On 24 January1964 he was convicted by special court-martial of assault on another soldier.

On 1 February 1964 the applicant was granted 30 days leave due to the death of his father.  Effective 2 March 1964 he was in an AWOL status.  Effective 15 March 1964 he was in the hands of civil authorities awaiting trial.  On 1 July 1964 he plead guilty to contributing to the delinquency of a minor and was sentenced to 10 months in jail.

On 9 October 1964 the unit commander recommended the applicant be separated for misconduct based on his conviction by civil authorities.  The commander also noted the applicant’s prior court-martial for assault and the 14 days AWOL that had not been adjudicated.  An undesirable discharge was recommended.  The separation authority approved the request and directed issuance of an undesirable discharge.

Effective 14 October 1964, while still in civil confinement, the applicant was separated under authority of Army Regulation 635-206.  He had 9 months and 5 days creditable service and 214 days lost time.

The Uniform Code of Military Justice, table of maximum punishments, allows for confinement at hard labor for 1 to 7 years for involvement with a minor, depending on the specifics of the case.

Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority, provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge was 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 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.

2.  Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge was considered appropriate.

3.  Considering the applicant’s prior court-martial conviction, his 14 days AWOL prior to confinement by civil authorities, and the conviction by civil court resulting in a sentence of 10 months in jail, it does not appear that characterization of his service as undesirable was unjust or unfair.

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

__rvo____  __sc___  __klw____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020903	
SUFFIX		
RECON		
DATE BOARDED	19990513YYYYMMDD	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19641014	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.