MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            6 March 2001                 
	DOCKET NUMBER:   AR2000045981

	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. Stanley Kelley		Chairperson	
	Mr. Ernest W. Lutz		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 honorable.

APPLICANT STATES:  In effect, that there was no error in his case, but at the time of his enlistment, he was young and immature.  In 1969, he enlisted in the Army while living in Frankfurt Germany at the age of 17.  He took the same military occupational specialty (MOS) as his father, who was a motor sergeant assigned to Germany.  He claims that he let his father and everyone else down.  He now contends that it has been more than 20 years since he was discharged with a UD and claims that this action “really held him back”, and he would do things a lot differently today.  He therefore submits his case in hopes of changing his discharge status.  

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

On 26 May 1969, he enlisted in the Army for a period of 3 years.  He took basic and advanced training at Fort Dix, New Jersey and was awarded MOS 63B20, (Wheel Vehicle Mechanic).  

His punishment included forfeiture of $25.00 pay and 14 days restriction and extra duty.

On 14 September 1969, he went AWOL from Fort Dix.  Notwithstanding this, he was advanced to pay grade E-2 on 26 September 1969, which was the highest pay grade he achieved. 

On 12 November 1969, he was returned to military control at Fort Riley, Kansas.

On an unknown date in January 1970, the applicant was charged (charge sheet is not available in file) with being AWOL from 14 September through 12 November 
1969 and being disrespectful toward a superior commissioned officer on 
15 December 1969.

On 17 January 1970, the applicant consulted with legal counsel, requested discharge under the provisions of chapter 10, Army Regulation AR 635-200, in lieu of trial by court martial, and did not submit a statement in his own behalf.  

On 12 February 1970, the convening authority, disapproved his request for discharge under the provisions of chapter 10, AR 635-200.  His case was therefore referred to trial by a special court-martial.

On 26 February 1970, the applicant was tried by a special court-martial for violation of the UMCJ, Article 86, for being AWOL from 14 September through 12 November 1969, and for violation of Article 89, UMCJ, for being disrespectful to a superior commissioned officer on 15 December 1969.  The AWOL charge was dismissed on motion by the defense counsel due to the lack of a speedy trial.  He also was found not guilty of being disrespectful towards a superior commissioned officer. 

On 27 February 1970, the applicant was reassigned to Fort Riley, Kansas for duty, as a Wheel Vehicle Repairer.

The applicant’s records show that he was AWOL from 22 June through
9 November 1970, and then from 13 November 1970 to on or about 25 June 1971. On 26 June 1971, his status was changed to absent in the hands of civil authorities, but he still was considered as being AWOL. 

However, in actuality he had been arrested on 15 May 1971 by civilian authorities in Michigan.  He was then jailed and charged with four counts of assault with intent to murder; assault with intent to rob and steal while armed; felonious assault; and attempted robbery while armed.  On 15 June 1971, he was tried in the Circuit Court for the County of Oakland, Michigan and sentenced to confinement in the State Prison of Southern Michigan at Jackson, Michigan for 1 to 4 years.  He was also given credit for 120 days served in the Oakland County Jail. 

In connection with his civil arrest, he was administratively reassigned from Fort Riley, to Fort Sheridan, Illinois.  On an unknown date, his unit commander at Fort Sheridan notified the applicant, in writing, of his intent to recommend that he be discharged under the provisions of AR 635-206, with an undesirable discharge due to his civil court conviction.

On 5 October 1971, the unit commander at Fort Sheridan, requested that the applicant be discharged from the service by reason of conviction by a civilian court. The commander indicated that the applicant had acknowledged receipt of the notification of the proposed discharge action, that he understood his rights, that he waived consideration of his case by a board of officers and that he did not wish to submit a written statement in his own behalf. 

On 17 November 1971, the separation authority approved the recommendation and directed discharge under the provisions of AR 635-206, section VI, for conviction by civil court with a UD. 

On 26 November 1971, the applicant was discharged with 10 months and 
16 days total action service and 580 days of lost time due to AWOL and confinement.

The applicant’s records do not reflect that he ever requested that the Army Discharge Review Board review his case.

Army Regulation 635-206, in effect at that time sets forth the basic authority for the separation of enlisted personnel for misconduct.  Section VI provided for separation of personnel convicted by civil authorities for offenses involving moral turpitude, adjudication as an 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.  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.

2.  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.

3.  The applicant's contention that he was young and immature at the time of enlistment is not sufficiently mitigating to warrant relief.  The Board also notes the applicant’s remorse more than 20 years after the fact.  However, the Board concludes that many other young soldiers who enlisted at age 17 served well and honorably in 1970–1971 and were able to satisfactorily complete their service obligation.  His serious civilian offenses made him unfit for further service in the Army in 1971.  This situation has not changed and if serving today his discharge would be the same.

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

__sk____  __ewl___  __hbo____  DENY APPLICATION

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

INDEX

CASE ID	AR2000045981	
SUFFIX		
RECON		
DATE BOARDED	200010306	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971126	
DISCHARGE AUTHORITY	AR .635-206, Sec VI	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.39	
2.	105.00	
3.		
4.		
5.		
6.