MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE: 13 January 2000                            
	DOCKET NUMBER:  AR199029114

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Margaret V. Thompson		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 (UD) be upgraded to a general discharge (GD), under honorable conditions.

APPLICANT STATES:  He was incarcerated as a result of a civil conviction while he was a young man serving to the best of his ability in the military.  In 1977, he received a full pardon from the state of Texas.  His rights and citizenship have been fully restored.  He is requesting an upgrade of his discharge based on this action.  In support of his request, he submits a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a Pardon granted by the Governor of Texas, and two character references written in his behalf.

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

On 6 January 1960, at age 19, the applicant was inducted into the Armed Forces of the United States.  He took basic combat training at Fort Carson, Colorado and was then assigned to Fort Sill, Oklahoma for advanced individual training (AIT) in military occupational specialty (MOS) 140.00 (Field Artillery).

On 23 February 1960, Headquarters, Department of the Army, Office of the Adjutant General (OTAG), Washington, DC, requested that the applicant’s unit review a 5 February 1960, Federal Bureau of Investigation (FBI) Report and determine whether the applicant concealed information which would have made him ineligible for entry into the military.  The OTAG correspondence shows that he admitted to a 22 November 1958, conviction for carrying a concealed weapon.  He received a sentence of 60 days.

The FBI report showed the applicant was arrested and charged with four cases of burglary on 5 February 1955.  He was released to his parent’s custody.  He was also charged with theft on 18 June 1957, “CCW” burglary and aggressive assault on 11 August 1958, and traffic and individual theft on 6 June 1959. However, the FBI report does not show the disposition of the charges and it does not show the concealed weapon charge.

On 26 May 1960, the applicant’s unit waived the right to discharge him for fraudulent entry on the basis that he had not been a disciplinary problem, his performance and conduct was excellent, he responded well to training, and he appeared to be a well-adjusted soldier.

On 29 June 1960, while assigned to Fort Sill, Oklahoma, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from on or about 6-12 June 1960.  He was sentenced to forfeiture of pay. 

The applicant departed AWOL from Fort Sill for the period 14-21 July and 
from 28-29 July 1960.  On 13 August 1960, he was assigned to the Special Processing Detachment at Fort Hood Texas.  On 26 August 1960, he received a summary court-martial for being AWOL from his unit at Fort Sill.  He was sentenced to reduction from pay grade E-2 to pay grade E-1, forfeiture of pay and confinement at hard labor for 15 days.  

On 18 September 1960, he departed his unit AWOL.  On 22 September 1960, civil authorities apprehended him.  On 14 November 1960 he pled guilty and was convicted by the Harris County, Texas, Court System on two counts of automobile theft.  He was sentenced to 2 years in a Texas State penitentiary.

On 12 December 1960, the applicant’s commander recommended separation under the provisions of Army Regulation (AR) 635-206, in the best interest of the service.  On 14 December 1960, the intermediate commander recommended approval.

On 6 January 1961, competent authority approved the recommendation and directed the issuance of a GD under the provisions of paragraph 20a, Army Regulation 635-206 for conviction by a civil court during current term of active military service. 

On 1 February 1961, the applicant was separated with a UD.  He had completed 5 months and 27 days of active military service.  He also had 214 days lost time due to being AWOL and in confinement.

The record does not indicate the applicant ever applied to the Army Discharge Review Board for a review of his discharge.

Army Regulation 635-206, then in effect, stated, in pertinent part, that an individual will be considered for discharge when an individual is initially convicted by civil authorities of an offense which involves moral turpitude, regardless of the sentence received or maximum punishment permissible under any code.  At the time a UD 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.  Conviction by civil authorities obligated military authorities to consider the 
applicant for discharge.  Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army. 

3.	The Board congratulates the applicant on his achievements since departing 
the military.  However, the Board does not grant relief based solely on being pardoned for a conviction of a civil offense even though the offense was committed while he was in the military.

4.  The Board noted that the applicant spent more time AWOL and in confinement than time served.  His conduct was not consistent with the Army’s standards for acceptable personal conduct by military personnel and clearly diminished the quality of his service below that meriting a HD.  

5.  Further, the Board noted that the applicant met entrance qualification standards to include age.  The Board found no evidence that he was any less mature than other soldiers of the same age who successfully completed their military service obligation.

6.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.

7.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

8.  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

EMW____  EWL____  MVT____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029114	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000113	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6100	
2.		
3.		
4.		
5.		
6.