MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 March 2000                  
	DOCKET NUMBER:   AR1999026446

	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.

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		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:  In effect, that his military records be corrected to reflect that he was honorably discharged on 13 November 1961.

APPLICANT STATES:  His release from active duty date should have been 
13 November 1961 and that he was “arrested by civil authorities & off base because [he] was no longer in service.”  He also alludes to the fact that the Army authorized him back pay from 13 November 1961 to March 1981.

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

He entered active duty on 14 November 1958 for a period of three years.  At the time of his initial entry on active duty his scheduled separation date (ETS) was established as 13 November 1961.

In August 1961, under Public Law 87-117, the applicant’s ETS date was involuntarily extended to 26 February 1962.  On 14 December 1961, after his original ETS date, but prior to his new ETS date, the applicant was apprehended by civilian authorities and convicted of transferring marihuana unlawfully.  He was sentenced to 5 years confinement as a result of the civil conviction.

On 12 June 1962 the applicant was discharged in absentia under the provisions of Army Regulation 635-206.  He was issued an undesirable discharge.  His separation document notes that he had 181 days of lost time between 14 December 1961 and 12 June 1962, the period he was confined by civil authorities.

In March 1981 the Army Discharge Review Board upgraded the applicant’s discharge to a general discharge.  Included in their notification was a notation that the applicant could apply to the U.S. Army Finance and Accounting Center, for “any monetary benefits to which you may be entitled by virtue of the change in your discharge.”  A new DD Form 214 was issued reflecting the new character of the applicant’s discharge but the document continued to reflect that the applicant had 181 days of lost time between 14 December 1961 and 12 June 1962.

Public Law 87-117, signed on 1 August 1961, authorized the President to extend an individual’s period of active duty, without their consent, for not more than 12 months.

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.  The evidence confirms that the applicant’s original ETS date, based on his initial enlistment, was 13 November 1961.  However, the Board notes that prior to that separation date his ETS date was involuntarily extended until 26 February 1962.

2.  On 14 December 1961, while the applicant was still on active duty, he was apprehended by civilian authorities, confined, and ultimately separated under other than honorable conditions on 12 June 1962.  Between 14 December 1961 and 12 June 1962 the applicant, although still technically on the rolls of the Army because he had not been discharged, would have been in an “AWOL” or no pay due status, hence the “181 days lost” entry on his separation documents.

3.  The Board notes that while the applicant may believe that he is entitled to compensation by virtue of the fact that the Army Discharge Review Board upgraded his discharge in 1981 there is no basis for such compensation.  The action by the Army Discharge Review Board in 1981 only served to upgrade the applicant’s discharge it did not change the basis for the discharge nor nullify the applicant’s lost time.

4.  The Board concludes that the statement on the March 1981 Army Discharge Review Board letter of notification appears to be a standard comment and not necessarily a confirmation that any pay is due the individual.

5.  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.

6.  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

__rgh___  ____mdm__  __jps____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026446	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000329	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.