MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:             22 August 2000        
	DOCKET NUMBER:   AR2000036645

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson 		Member	
	Mr. Kenneth W. Lapin		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 honorable.

APPLICANT STATES:  In essence, he was arrested by the civilian authorities and given a trial.  He was convicted and sentenced to jail by civilian authorities not by the military service.  In effect, the civilian conviction should not have contributed to him being discharged from the Army with an UD.  He relies on his service record in support of his application

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

On 3 December 1968, he was inducted into the Army of the United States.  On 
7 April 1969, he completed advanced individual training in military occupational specialty (MOS) 94B20 (Cook) at Fort Knox, Kentucky, and was assigned to Fort Benning, Georgia for duty in his MOS.  

On 23 January 1970, he was assigned to duties in Korea.   On 2 December 1970, he was honorably separated from active duty and was transferred to the Army Reserve to complete his 6-year service obligation.  He had served for 1 year, 11 months and 5 days on active duty and he had 25 days lost time due to three periods of being absent without leave (AWOL) during his first period of service.  The highest pay grade he attained was E-5. 

On 24 August 1971, he reenlisted in the RA for 3 years, in pay grade E-5, as a cook. He was assigned to Fort Knox.  While at Fort Knox, he received two nonjudicial punishments (NJP), under Article 15, Uniform Code of Military Justice (UCMJ) for two periods of AWOL.  

The first NJP was administered on 8 November 1971 for being AWOL between 
1–6 November 1971.  His punishments included forfeiture of $132.00 pay per month for 2 months and reduction to pay grade E-4, suspended for 60 days.  On 26 June 1972, he received his second period of NJP, for being AWOL on 21 June 1972 
(1 day).  His punishment included reduction to E-4 and forfeiture of $150.00, pay per month for 2 months, suspended until 22 September 1972. 

The applicant’s military records are somewhat unclear as to his many absences over the next 12 months.  It appears that he went AWOL from a leave status on 16 August 1972.  On or about 6 September 1972 he was arrested by civil authorities for grand larceny.  On 4 October 1972, he was tried and convicted in the Hardin County Circuit Court, Commonwealth of Kentucky, of grand larceny.  He was sentenced to a term of 1 year in the Kentucky State Penitentiary, but he apparently was placed on parole for 1 year.  

He was returned to military control on 30 October 1972, was placed in military confinement for 2 days and went AWOL again on 3 November 1972 (actually he was dropped from the roles of the Army as a deserter).  

He returned from this period of AWOL/desertion  on 4 January 1973.  He was again AWOL from 8-19 February 1973.  On 20 March 1973, he was convicted by a special court martial of two periods of AWOL from 16 August-27 October 1972 and from
8-19 February 1973.  His sentence included reduction to pay grade E-2 and restriction to the unit area for 30 days.  

On 20 May 1973, he again went AWOL and on 15 July 1973 he apparently was arrested by civilian authorities and was placed in civilian confinement.  

The entire discharge packet is not on file.  However, on or about 14 September 1973, the applicant signed a statement, witnessed by a county sheriff, that he had been advised by military authorities that he was being considered for discharge under the provisions of Army Regulations 635-206, because of his civilian conviction.  He declined to meet with counsel.  He requested to have his case considered by a board of officers and that he be represented by military counsel.  He stated that his right to appeal of the civilian offense had expired.   

He submitted a statement in his own behalf, in which he requested immediate discharge with either a general or honorable discharge.  He wanted to go to civilian schooling and to receive his veteran benefits. 

On 26 October 1973, a board officers convened.  The applicant was absent due to his civilian confinement, but received representation by counsel before the board.  The board determined that his record reflected a history of numerous AWOL’s and misconduct and that he was undesirable for retention in the service as a result of civil conviction for grand larceny.  Due to his past record, rehabilitation was not deemed feasible and therefore the board recommended that he be separated from the service because of civil conviction and that a UD be furnished.

On 21 November 1973, the separation authority approved the recommendation of the board and directed discharge under the provisions of AR 635-206, paragraphs 33a and 37a, for conviction by civil court with UD.  On 29 November 1973, the applicant was discharged, in absentia, with 1 year, 8 months and 
4 days total time in service on the enlistment under review and 216 days of lost time due to AWOL or civilian confinement.

The applicant requested that the Army Discharge Review Board (ADRB) change his character of service to honorable.  On 12 January 1976, the ADRB denied the applicant’s request.

Army Regulation 635-206, in effect at that time sets forth the basic authority for the separation of enlisted personnel for misconduct. Paragraph 33a and 37a, provided for separation of personnel convicted by civil authorities for offenses involving moral turpitude, adjudication as a juvenile offender or an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  A UD was normally given for such discharges. 

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.  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.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge was commensurate with the applicant’s overall record of military service during the enlistment under review.

3.  In view of the applicant’s repeated acts of AWOL during the period of service under review, and the seriousness of his civilian conviction, it does not appear that his UD was too severe.

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 this 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

__ew____  __mvt___  __kwl____  DENY APPLICATION

Carl W. S. Chun
Director, Army Boards for Correction
of military Records

INDEX

CASE ID	AR1999022902	
SUFFIX		
RECON		
DATE BOARDED	20000822	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19600202	
DISCHARGE AUTHORITY	AR .635-206, Sec III	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.00	
2.	A01.00	
3.	A92.17	
4.	A92.27	
5.	A92.31	
6.