MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           2 August 2001
	DOCKET NUMBER:   AR2001051350

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John P. Infante		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 (UD) be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  In effect, that the UD that he received was too harsh.

COUNSEL CONTENDS:  In effect, that the Board's attention is invited to those injustices raised by the applicant in his petition to the Board.

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

On 28 July 1970, the applicant enlisted in the Regular Army for a period of 
3 years.  On 10 August 1970, he was assigned to basic training at Fort Dix, New Jersey.  He completed basic combat training.  However, he never enrolled in advanced individual training.

The available records show that the applicant was absent without leave (AWOL) from 4 October-11 November 1970.  He was apprehended by military police in Washington, DC on 12 November 1970 and he was returned to military authorities at Fort Meade, Maryland.  He left Fort Meade AWOL from 
18 November-7 December 1970.  He was in confinement at Fort Meade from 
7 December 1970-13 January 1971.

An Army Discharge Review Board Report and Directive, dated 27 December 1977, shows that on 13 January 1971, the applicant was convicted by a special court-martial of being AWOL from 4 October-12 November and from 
18 November-7 December 1970.  However, his sentence is unknown, the charge sheet for this offense is not contained in the available record.

A DD Form 1569 (Incident/Complaint Report), dated 5 March 1971, shows that he was issued Special Orders #19 by, Headquarters, Special Processing Branch, Fort Meade, directing him to report to Fort Jackson, South Carolina not later than 2400 hours on 29 January 1971.  Apparently, he did not report as instructed.  He went into an AWOL status from 29 January-4 March 1971.  The orders are not contained in the available record.

On 5 March 1971, civilian police in Washington, DC pursued him after he was observed running with a long handled object sticking from the waist of his trousers.  He was apprehended and charged with carrying a deadly weapon (a 12" carving knife).  He was also charged with assault with a deadly weapon.  

On an unknown date, the applicant appeared before the United States Superior Court of the District of Columbia, Criminal Division.  He was convicted of assault with a deadly weapon and for carrying a deadly weapon.  He was sentenced to confinement in the District of Columbia jail in Washington, DC for a period of 
4 years.  
On 20 January 1972, the applicant’s commander notified him of his intent to recommend separation under the provisions of Army Regulation 635-206, due to civil conviction.  

On 23 March 1972, the applicant authenticated a document with his own signature in which he acknowledged that he had been advised of the basis for the contemplated action and its effects, and the rights available to him.  He stated that he understood the consequences of receiving a UD.  He waived further representation by legal counsel and a personal appearance before a board of officers.  He declined to submit a statement in his own behalf.  He also stated in writing that he did not intend to appeal his civil conviction.

On 12 April 1972, the applicant’s commander recommended approval with a UD.
On 1 May 1972, competent authority approved the recommendation and directed the issuance of a UD under the provisions of Army Regulation 635-206 due to conviction by a civil court while on active duty.  

On 1 May 1972, the applicant was separated with a UD.  He had completed 
2 months and 24 days of active military service.  He had 557 days lost time due to being in AWOL and in confinement.  He was separated with the rank of private, pay grade E-1.

On 27 December 1977, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

Army Regulation 635-206, then in effect, stated, in pertinent part, that an individual will be considered for discharge when initially convicted by civil authorities of an offense which involves moral turpitude, regardless of the sentence received or maximum punishment permissible under any code.  At the time a UD was 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, then in effect, with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

3.  Conviction by civil authorities obligated military authorities to consider the 
applicant for discharge.  Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army. 

4.  The board considered the quality of the applicant's active duty service and determined that this service was not sufficiently meritorious to warrant an upgrade of the UD that he received.

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

__RJW __  __BJE__  ___JPI___  DENY APPLICATION

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

INDEX

CASE ID	AR2001051350	
SUFFIX		
RECON		
DATE BOARDED	20010802	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6100	
2.		
3.		
4.		
5.		
6.