MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 November 1999                   
	DOCKET NUMBER:   AR1999028362

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Lester Echols		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 general discharge be upgraded to fully honorable and that the reason for discharge, Civil Conviction, be corrected.

APPLICANT STATES:  That he has no civil criminal record, his violation was expunged from his record.  Supporting evidence is as listed on the DD Form 149.

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

He enlisted in the Regular Army on 10 July 1967.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 16K (Fire Distribution System Crewman).  This MOS required a security clearance.  He was honorably discharged on 29 June 1968 for the purpose of immediately reenlisting on 30 June 1968.

The applicant had had no record of disciplinary action and had earned the Army Good Conduct Medal when he was arrested for assault on 1 July 1971.  On        7 September 1971 he pleaded guilty to assault and was sentenced to not more than 3 years probation.  As a result of his conviction he lost his security clearance and could no longer work as an assistant air defense artillery director.

On 6 October 1971, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-206, misconduct, conviction by a civil court.

On 27 October 1971, the applicant waived consideration of his case by a board of officers, waived personal appearance before such a board, waived representation by counsel, and elected not to submit a statement in his own behalf.

On 19 November 1971, the appropriate authority approved the recommendation and directed the applicant receive a general discharge.

On 11 January 1972, the applicant was discharged, in pay grade E-5, under the provisions of Army Regulation 635-206 for civil conviction with a general discharge.  He had completed 4 years, 6 months and 2 days of creditable active service and had no lost time.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.
Information obtained from the District Court, Lake of the Woods County Courthouse, Baudette, MN on 17 November 1999 indicates the applicant’s civil conviction has not been expunged from the records.  

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.  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.  The evidence of record shows that his civil conviction has not been expunged.

3.  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___  __rgh___  ___le___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028362	
SUFFIX		
RECON		
DATE BOARDED	19991124	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19720111	
DISCHARGE AUTHORITY	AR 635-206  	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.