MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           17 March 1999      
	DOCKET NUMBER:   AR1999022584

	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. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steuve		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 general.  

APPLICANT STATES:  That other service personnel had their discharges upgraded and he should be afforded the same benefit.  

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

He enlisted on 31 March 1969 for a period of 3 years.  He successfully completed basic training at Fort Jackson, South Carolina and was transferred to advanced individual training (AIT) at Fort Gordon, Georgia, for training as an avionics mechanic.

While in AIT, on 25 November 1969, nonjudicial punishment was imposed against the applicant for being AWOL from 3 November 1969 to 17 November 1969.  His punishment consisted of confinement at hard labor for 3 months, forfeiture of $60.00 for 3 months and reduction to the lowest enlisted grade.  The convening authority approved the sentence and suspended the confinement at hard labor for 6 months.

On 29 November 1969 the applicant was arrested for Armed Robbery by civil authorities.  On 7 May 1970, he pled guilty in civilian court, was convicted of Armed Robbery and sentenced to serve 10 years at the penitentiary of Georgia.

On 13 October 1970 the applicant was notified of his pending separation under the provisions of Army Regulation 635-206, for conviction by civil court.  On 
24 October 1970, while in civilian confinement, the applicant acknowledged notification of his pending separation, requested consideration of his case by a board of officers and representation by counsel.

On 30 October 1970 the applicant’s commander recommended that he be discharged from the service under the provisions of Army Regulation 635-206 with an undesirable discharge.  He based his recommendation for separation on the applicant’s civilian conviction for Armed Robbery.

A board of officers convened on 6 January 1971 and the applicant was represented by military counsel.  The board of officers determined that the applicant should be eliminated from the service because of conviction by a civil court.  The board recommended:  (1) that the applicant be separated and be given an undesirable discharge; (2) that action on this recommendation be suspended for a period of 6 months in order to afford the applicant the opportunity to appeal his civil case; and (3) that during the suspension period, if a successful appeal is made and the applicant is acquitted, that he be afforded the opportunity to appear before another board of officers.
On 19 January 1971, the applicant’s commander initiated action to bar him from reenlistment.  He cited as the basis for his recommendation the applicant’s record of misconduct and that he was a substandard soldier.  The appropriate authority approved the bar to reenlistment.

On 1 February 1971, the appropriate authority approved the board of officer’s recommendation that the applicant be separated from the service and be given an undesirable discharge for civil conviction under the provisions of Army Regulation 635-206.  The second and third recommendations of the Board pertaining to suspension of the discharge were disapproved.

Accordingly, he was discharged on 8 March 1971 under the provisions of Army Regulation 635-206, for being convicted by a civil court during his current term of active military service.  He had served 6 months of total active service with 463 days lost time due to AWOL and civilian confinement.

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.

The applicant applied to the Army Discharge Review Board (ADRB) on 
16 October 1979 for an upgrade of his discharge to honorable or general.  He cited in his application to the ADRB that he enlisted to serve his country, he was convicted of a civilian offense which he did not commit and that he pled guilty under the direction and advice of his attorney.  He contended that he served in a penal institution and successfully completed his parole upon release.  He also contended that he was a respectable citizen and will always be ready to serve his country if the need arises.  The ADRB denied his application for upgrade of his discharge on 9 June 1981.   

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 type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contention was noted by the Board.  However, he has failed to show through the evidence submitted with his application or the evidence of record, that the actions taken in his case were in error or unjust.

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

___tsk__  __owt____  __jps____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022584	
SUFFIX		
RECON		
DATE BOARDED	19990317	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19710308	
DISCHARGE AUTHORITY	AR635-206  	
DISCHARGE REASON	MISCONDUCT – CONVICTION BY CIVIL CT	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.110.00	189	
2. 144.9227	817	
3. 144.9223	813	
4.		
5.		
6.