MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  26 September 2000
	DOCKET NUMBER:  AR2000039220

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas Baxter		Member	
	Mr. Melvin H. Meyer		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 discharge be upgraded.

APPLICANT STATES:  That there was no justification for his discharge under Army Regulation 635-212.  He served 2 years in the Army and 18 months was in Vietnam as an infantryman.  He states that he has been an outstanding citizen between the ages of 20 and 50.  He submits copies of employment references in support of his application.

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

He enlisted and entered active duty on 15 August 1967.  After completion of infantry training he was assigned to Vietnam.  While at the transient company he was punished under Article 15, UCMJ for missing movement to Vietnam.

While in Vietnam he was AWOL on 4 occasions for a total of 116 days.  On 24 May 1969, the applicant was convicted by a special court-martial of AWOL, three specifications of failure to obey a lawful general regulation and pandering.  The approved sentence included a suspended sentence of confinement for 6 months and reduction to pay grade E-1.

Also in the available record is a message from the applicant’s division headquarters.  The message is dated 21 June 1969 and notifies the gaining command that the applicant was extended in Vietnam beyond his normal departure date pending his elimination from the service under Army Regulation 635-212.  The message further states that an undesirable discharge had been approved on 20 June 1969 for the applicant and he was scheduled to arrive at the transfer station for separation on 23 June 1969.

The facts and circumstances surrounding the applicant’s discharge are no longer in the available record.  Effective 24 June 1969 the applicant was separated, under other than honorable conditions, in pay grade E-1 under the authority of Army Regulation 635-212.  He is credited with 1 year, 7 months, and 25 days creditable service and only 74 days lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

In 1978 the applicant enlisted in the U. S. Marine Corps.  He was separated without service credit for fraudulent enlistment based on his denial that he had prior Army service and his extensive police record that was not disclosed.

The applicant provides seven character reference letters that appear to have been prepared over the past 11 years for the purpose of further employment.  They speak of him as a valued employee and an asset to their company.  He was conscientious and a hard worker.

The applicant also contends that he has been an outstanding citizen for the past 30 years.  A review of his FBI records revealed that, since his separation from active duty, he has been arrested and convicted on four occasions.  The criminal convictions included attempted robbery with a firearm, possession of a deadly weapon, felony assault with a deadly weapon, and passing a bogus check.

There is no evidence of record that he applied to the Army Discharge Review Board for an upgrade of his discharge within the established 15 year time limit.

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 to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.  In view of the applicant's numerous acts of indiscipline, it does not appear that his discharge was too severe.

2.  The applicant’s good post service employment record is commendable, however, on balance with his post service criminal record, there is no basis for an upgrade of his discharge based on clemency.

3.  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.

4.  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____  __tb____  ___mm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039220	
SUFFIX		
RECON		
DATE BOARDED	20000926	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19690624	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.