MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  25 January 2001
	DOCKET NUMBER:  AR2000041801

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karen A. Heinz		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 a general discharge (under honorable conditions).

APPLICANT STATES:  In effect, that he went AWOL because he was sexually assaulted by another individual which caused severe mental suffering.  He also states that he felt shame, guilt and embarrassment and he has just begun to deal with the situation.  He further states that he has turned his life around and has stopped running from the past.  He goes on to state that an upgrade of his discharge would assist him in healing his past, that he could go further as a productive individual, and not live in shame and hurt of the past.  In support of his application he submits a copy of his DD Form 214 and a personal letter.  

The Board notes that the applicant indicated in his application that he was providing additional forms; however, they are not available to the Board for review.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 20 May 1969 as a heavy engineer equipment operator.

Between September 1969 and October 1969, the applicant was punished twice under Article 15, UCMJ, for being AWOL from 2 to 14 September 1969 (13 days) and from 20  to 30 September 1969 (10 days).  His punishment consisted of a forfeiture of pay, restriction and extra duty. 

The applicant’s records show he went AWOL from 9 October 1969 to 2 October 1970 (385 days) and was placed in the hand of civilian authorities on 3 March 1970.  He remained in civilian confinement until 28 October 1970.

The facts and circumstances pertaining to the applicant’s discharge are not present in the available records.  However, his DD Form 214 shows that on 28 October 1970, he was discharged under the provisions of Army Regulation
635-206, for misconduct-civil court conviction.  He was furnished an Undesirable Discharge Certificate.  He had a total of 3 months and 25 days of creditable service and 407 days of lost time due to AWOL and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 635-206, in effect at that 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 considered 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 personnel.  Chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories
include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be take to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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.  The applicant’s contentions have been noted by the Board.  However, his
AWOL and conviction by civil authorities were too serious, when compared to his overall record, for equitable relief to be appropriate.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  

3.  The type of separation directed and the reasons for that separation were appropriate considering all of the facts of the case.

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

__jh____  ___kh_____  ___le___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041801	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010125	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19701020	
DISCHARGE AUTHORITY	AR .635-206	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189/360		
2.		
3.		
4.		
5.		
6.