MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          17 August 2000                   
	DOCKET NUMBER:  AR2000035617

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons 		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 undesirable discharge (UD) be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  In effect that, he had to leave the service as a result of a hardship.  He was involved in probating his father’s estate.  He submits four letters written in his own behalf in support of his request.  The letters state that he has finished taking care of his personal responsibilities and he wishes to return to active duty.  He wants the Board to subpoena a number of individuals to participate in his board proceedings.  He also states that his DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge) incorrectly shows that he served on active duty from “10-72-10-29-72.”

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

On 4 June 1971, the applicant enlisted in the Regular Army for 3 years.  He completed basic combat training at Fort Dix, New Jersey and was on leave enroute to Fort Gordon, Georgia for advanced individual training.  He failed to report and on 8 October 1971, he went into an absent without leave (AWOL) status.

Evidence of record shows that on 26 October 1971, in Benton Harbor, Michigan,
he unlawfully entered a building to commit larceny. 

On 13 March 1972, he pled guilty and was convicted of the above offense by the Circuit Court for the County of Berrien, Michigan.  He was sentenced to serve a minimum of 1 ½ years and a maximum of 5 years in the State Prison of Southern Michigan located in Jackson, Michigan.

On 29 July 1972, the applicant’s commander notified him of his intent to recommended separation under the provisions of Army Regulation 
635-206, due to civil conviction.  

On 12 August 1972, the applicant authenticated a document with his own signature in which he acknowledged that he had been advised of the basis for the contemplated action and its effects, and the rights available to him.  He stated that he understood the consequences of receiving a UD.  He waived further representation by legal counsel and a personal appearance before a board of officers.  He also stated that he did not intend to appeal his civil conviction and he did not submit a statement in his own behalf.

On 12 September 1972, the applicant’s commander recommended approval.
On an unknown date, competent authority approved the recommendation and directed the issuance of a UD under the provisions of Army Regulation
635-206 due to conviction by a civil court while on active duty. 

On 30 October 1972, the applicant was separated with a UD.  He had completed 4 months and 5 days of active military service.  He also had 388 days lost time due to being AWOL and in civil confinement. 

Item 11 (Effective Date) on his DD Form 214 shows that he was separated from the military on 30 October 1972.

Item 16c (Date of Entry) on his DD Form 214 shows that he enlisted in the military on 4 June 1971.

On 24 August 1977, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge under the provisions of the Special Discharge Review Program.

On 20 April 1982, again the ADRB denied his request for an upgrade 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 this requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

3.  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. 
4.  The Board determined that the applicant had many legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct which led to the separation action under review.

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

6.  This agency is not an investigative agency, nor does it have subpoena authority.

7.  Both the applicants’ enlistment date and his separation date is correctly entered on his DD Form 214.

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

__svw___  __mhm__  __lds____  DENY APPLICATION

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

INDEX

CASE ID	AR1999035617	
SUFFIX		
RECON		
DATE BOARDED	20000817	
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.