MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 August 2000
	DOCKET NUMBER:   AR2000039610

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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 an honorable discharge.

APPLICANT STATES:  That his post-service conduct, to include thousands of hours of community service, should be weighed against the offense that lead to his discharge.  In support of his appeal, he submits a three-page letter addressed to the Adjutant General, Army Records Center dated 21 February 2000 detailing his life since his discharge and explaining the events that took place prior to his discharge.  He also submits a letter dated 23 June 1998, from the Office of The Adjutant General explaining the reason for discharge, a letter dated 4 May 1964, from the United States District Court informing him of the criteria for his probation and a letter from the Assistant United States Attorney, Middle District of Alabama dated 25 January 1963, informing him that a complaint has been filed against him.

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

On 28 September 1962, he enlisted in the Army for 3 years in the pay grade of 
E-1.  

On 4 January 1963, while he was still in training attending the Infantry Mechanic Course, civil authorities in Tuskegee, Alabama apprehended the applicant and charged him with transporting a stolen motor vehicle across the Georgia-Alabama state line.  He was placed in pretrial confinement until he was convicted by civil authorities on 1 February 1963, after he plead guilty to the charge.  His sentence consisted of 3 years of probation.  He returned to duty on 4 February 1963.  The applicant indicated that he did not intend to appeal the civil conviction.

On 11 March 1963, he was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-206 had been initiated.  The commander cited his conviction by civil authorities as the reason for the elimination recommendation.  He acknowledged receipt of the notification and, after consulting with counsel, he waived his right to a hearing before a board of officers and he opted not to submit a statement in his own behalf. 

Nonjudicial punishment (NJP) was imposed against the applicant on 19 April 1963 for altering an official document by changing his year of birth from 1944 to 1941.  His punishment consisted of 14 days of restriction to the company area.

On 23 May 1963, NJP was imposed against him for being drunk and disorderly.  His punishment consisted of 14 days of restriction to the company area.

The recommendation for discharge was approved by the appropriate authority on 12 July 1963.  Accordingly, on 15 July 1963, he was discharged under the provisions of Army Regulation 635-206 for misconduct due to his conviction by civil authorities.  He had completed only 8 months and 20 days of total active service and he had 28 days of lost time due to confinement.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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.

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.  The actions by the Army in his case were correct and there is no doubt to be resolved in favor of the applicant.

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

3.  The applicant’s post-service conduct has been noted by the Board.  However, it is not a sufficient basis to grant the relief requested.  The evidence of record clearly shows that he was tried and convicted by civil authorities for transporting a stolen motor vehicle across the Georgia-Alabama state line and he had NJP imposed against him twice for his acts of misconduct.  It does not appear that the undesirable discharge issued to him is too severe considering his offenses.  

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

__mdm__  __js_____  ____kah_  DENY APPLICATION

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

INDEX

CASE ID	AR2000039610	
SUFFIX		
RECON		
DATE BOARDED	2000/08/10	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1963/07/15	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	626	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	144.600	
2.		
3.		
4.		
5.		
6.