MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 November 2000
	DOCKET NUMBER:   AR2000047832

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Ms. Barbara J. Ellis		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:  In effect, that his undesirable discharge be upgraded to a more favorable discharge.

APPLICANT STATES:  In effect, that he was unaware that acceptance of an undesirable discharge would deprive him of his benefits and that he received his undesirable discharge because he was angered at the way black people were being treated in this country, especially since he was serving in Vietnam.  He further states that while he heard that his people were being treated poorly from the North Vietnamese, he did not believe it until he returned to the United States; only to be told at that time that he could not belong to any black organizations that supported the Civil Rights Movement.  He goes on to state that prior to entering the Army he belonged to such organizations and because black soldiers were being monitored, he secretly attempted to find a way to further the cause; which eventually led to his being incarcerated for 53 months on the Georgia chain gang.  In support of his application he submits a letter from his wife which outlines the turmoil that the applicant and his family have experienced since his discharge and the fact that he was constantly involved in violence and carrying weapons with him at all times.

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

He enlisted in New Orleans, Louisiana on 15 February 1963 for a period of 3 years.  He completed his training and was transferred to Korea for duty as a rifleman.  He served in Korea until 12 September 1964 when he was transferred to Fort Ord, California.  While at Fort Ord he was honorably discharged on 8 March 1965 and reenlisted the following day for a period of 3 years and assignment to Fort Hood, Texas.  

He served at Fort Hood until he was transferred to Vietnam on 23 June 1965 and was assigned to duties as a security guard at the Unites States Military Assistance Command – Vietnam (MACV).

On 3 March 1966, nonjudicial punishment (NJP) was imposed against him for interfering with the duties of a military policeman, pushing him and acting in a belligerent manner.  His punishment consisted of a forfeiture of pay.

He remained in Vietnam until 14 June 1966, when he was transferred to Fort Gordon, Georgia.  He was promoted to the pay grade of E-4 on 24 April 1967.

On 5 July 1967, NJP was imposed against him for failure to go to his place of duty and for being drunk on duty.  His punishment consisted of a reduction to the pay grade of E-3 and restriction for 30 days.  He appealed his punishment and his appeal was denied.

On 26 January 1968, the applicant plead guilty in the Superior Court of Richmond County, Georgia to the charges of robbery, carrying a concealed weapon, and carrying a pistol without a license on 5 October 1967 .  He was sentenced to confinement by the Georgia State Department of Corrections for a period of 9 years.

On 5 March 1968, the applicant was notified by his commander that action was being taken to recommend him for elimination from the service under the provisions of Army Regulation 635-206, based on his conviction by civil authorities.  The applicant acknowledged on 14 March 1968 that he intended to appeal his civil conviction and that he desired to appear before a board of officers.  Since the applicant indicated that he intended to file an appeal, the proceedings were suspended pending the outcome of his appeal.

The applicant failed to file an appeal of his civil conviction within the 30 days allowed for in the State of Georgia and the board of officers was convened on 27 May 1968 to determine if he should be separated from the service.

The applicant was represented by military counsel who indicated that he had visited the applicant in prison.  He related that the applicant had stated, in effect, that he had plead guilty to the charges against him and that he believed that the incident was brought about by a series of personal problems.  He had been separated from his wife, he had a child by a woman to whom he was not married and it had died, and his mother suffered a nervous breakdown.  He (the applicant) requested that he not be discharged and that be afforded the opportunity to return upon his release, or that as a minimum he be granted at least a general discharge.  His counsel also made the board of officers aware that they were not required to separate the applicant from the service and that he could be retained.  The board of officers recommended that the applicant be discharged from the service and that he be furnished with an Undesirable Discharge Certificate.

The appropriate authority approved the findings and recommendations of the board of officers on 14 June 1968 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 27 June 1968 under the provisions of Army Regulation 635-206 for misconduct involving conviction by civil authorities.  He had served 4 years, 7 months and 20 days of total active service and had 267 days of lost time due to confinement by civil authorities.  His awards included the Vietnam Service Medal, the Republic of Vietnam Campaign Medal and one overseas service bar.

There is no indication in the available records to show 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.

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL.  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.  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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.

3.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

4.  The applicant’s contentions and supporting statements have been noted by the Board.  However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge. 

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

__jlp ____  ___owt__  ____bje _  DENY APPLICATION

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

INDEX

CASE ID	AR2000047832	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/09	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/06/27	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	627/CIV CONV	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	144.6100/A61.00/CONV BY CIV AUTH	
2.		
3.		
4.		
5.		
6.