MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 May 2000
	DOCKET NUMBER:   AR2000035614

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That he was being held by civil authorities with the knowledge of his command; that they were aware of his whereabouts, and that they made no effort to seek his release.  He further states that he was discharged under other than honorable conditions for riding in a car that had been stolen.  He was placed in jail and held until the case was brought to trial and he was exonerated by the court.  He goes on to state that he notified his command of his incarceration and when he arrived back on base he was told to sign his discharge papers because he was being separated from the Army.

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

He enlisted in Dallas, Texas on 22 July 1957 for a period of 3 years and training as a military policeman.  He successfully completed his training and was transferred to Fort Bragg, North Carolina where he remained until he was transferred to Germany on 4 July 1958.

He was promoted to the pay grade of E-3 on 2 September 1958 and was reduced to the pay grade of E-2 on 29 December 1958 for inefficiency.

On 27 January 1960 he was convicted by a special court-martial of stealing 125 gallons of gasoline.  He was sentenced to a forfeiture of pay.

He was honorably discharged on 21 July 1960 at Fort Dix, New Jersey due to the expiration of his term of service.  He had served 3 years of total active service.

However, on 22 July 1960 (the following day) he reenlisted for a period of 6 years, training as an aircraft mechanic, and a reenlistment bonus.  He was transferred to Fort Rucker, Alabama on 18 August 1960 to undergo his training as an aircraft mechanic.  He successfully completed that training on 4 November 1960 and was transferred to Davidson Army Airfield at Fort Belvoir, Virginia.  He was promoted to the pay grade of E-4 on 16 January 1961.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records; however, there is a duly constituted DD Form 214 in the available records which shows that he was discharged under other than honorable conditions on 8 September 1961 under the provision of Army Regulation 635-206, due to conviction by civil authorities.  He had served 9 months and 14 days total active service during his current enlistment and had 123 days of lost time due to confinement by civil authorities.  The period of his confinement was from 6 May to 5 September 1961.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL.  A discharge under other than honorable conditions is normally 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 the absence of evidence of the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board and are not supported by the evidence submitted with his application or the evidence of record.  Therefore, given the seriousness of his offense and his otherwise undistinguished record of service, there is no basis to warrant an upgrade of his discharge.

4.  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.

5.  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

___ao___  __le ____  ___vbc__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000035614	
SUFFIX		
RECON		
DATE BOARDED	2000/05/16	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1961/09/08	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	627	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	144.6100/A61.00	
2.		
3.		
4.		
5.		
6.