MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            12 December 2000                  
	DOCKET NUMBER:   AR2000044718

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn 		Member	
	Mr. Harry B. Oberg		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 general, under honorable conditions so that he may be eligible for medical benefits from the Department of Veteran Affairs (VA).

APPLICANT STATES:  In effect, that his discharge should be upgraded because of his prior good service.

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

On 17 December 1964, the applicant enlisted in the Regular Army for a period of 3 years.  He was assigned to Fort Gordon, Georgia for basic combat training.  On 1 March 1965, the applicant was assigned to Fort Dix, New Jersey for advanced individual training (AIT).  On 12 April 1965, the applicant departed AIT in an absent without leave (AWOL) status and remained absent until 20 April 1965.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for AWOL.  His punishment consisted of forfeiture of $20.00 pay and 14 days’ restriction.  Upon completion of AIT, the applicant was awarded military occupational specialty (MOS) 76A (Supply Clerk) and was assigned to the Federal Republic of Germany.

The applicant served in Germany from 28 August 1965 to 14 May 1966 without incident.  On 13 June 1966, he was reassigned to Fort Gordon, Georgia for duty.

On 27 June 1966, the applicant departed his unit AWOL and remained AWOL until 15 December 1966 when he was apprehended and confined by civil authorities from 16 – 22 December 1966.  The applicant was transferred to military authorities and was placed in pre-trial confinement.  On 21 February 1967, the applicant was convicted by a special court-martial of AWOL.  He was sentenced to confinement at hard labor for 6 months, reduction to private, and forfeiture of $86.00 pay per month for 6 months.

On 12 March 1967, the applicant escaped from military custody and remained AWOL until 14 June 1967.  Returned to military control, he was once again placed in confinement from 15 June 1967 – 23 July 1967 at which time, he was released and returned to his unit.

On 24 July 1967, the applicant departed his unit in an AWOL status.  

The record indicates that while the applicant was AWOL he was arrested by civil authorities in Wytheville, Virginia on 8 November 1967 and charged with grand theft (automobile).  He was confined in the Wytheville County Jail.

On 29 January 1968, the Wytheville County Circuit Court tried and found the applicant guilty of grand theft (auto).  He was sentenced to 12 months at a correctional farm.
On 28 May 1968, a personnel officer notified civil authorities of the applicant’s pending separation under the provisions of Army Regulation 635-206 for conviction by civil court.

On 22 July 1968, while the applicant was in civil confinement, the appropriate authority approved the applicant’s discharge with a UD.  Accordingly, on 24 July 1968, the applicant was discharged after completing 1 year, 6 months, and 21 days of creditable military service and accruing 516 days of lost time prior to the expiration his term of service (ETS) and 221 days subsequent to ETS.

Army Regulation 635-206, then in effect, provided in pertinent part for the administrative separation or retention of enlisted personnel who had committed an act or acts of misconduct by reason of fraudulent entry in the service, conviction by civil court, and absence without leave or desertion.  Paragraph 33a of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.

There is no evidence of record that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

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.  After a thorough review of the applicant’s records, the Board concluded that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service. 

2.  The applicant’s misconduct, to include a civil conviction and confinement, diminished the quality of his service below that meriting a fully honorable or general discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct.

3.  Determining a veteran’s eligibility for VA medical benefits is not within the purview of this Board.

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

__fne___  __lem____  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044718	
SUFFIX		
RECON		
DATE BOARDED	20001212	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19680724	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	Civil Conviction	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DASA	
ISSUES         1.	144.9219	
2.		
3.		
4.		
5.		
6.