MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 April 2001
	DOCKET NUMBER:   AR2001051378

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Curtis L. Greenway		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 an honorable discharge.

APPLICANT STATES:  In effect, that the type of discharge that he received was too harsh considering the nature of his offenses.

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

He was inducted into the Army on 8 December 1965 and he successfully completed his training as a lineman.  On 3 April 1966, he was promoted to the pay grade of E-2.

Nonjudicial punishment (NJP) was imposed against the applicant on 11 June 1966 for being absent without leave (AWOL) from 30 May until 6 June 1966.  His punishment consisted of a reduction in pay grade and extra duty.

On 1 October 1966, NJP was imposed against him for breaking two mirrors in the latrine while he was under the influence of alcohol.  His punishment consisted of a reduction in pay grade and extra duty.

On 22 November 1966, the applicant was convicted by a civil court of four counts of first degree robbery.  He was sentenced to not less than 10 years nor more than 21 years in the Kansas State Industrial Reformatory on each charge, the terms to run concurrently.

A board of officers convened on 12 July 1967, to determine the applicant’s fitness for retention in the Army.  The board recommended that he be discharged from the service because of misconduct as a result of his conviction by civil court. The board further recommended that he be issued an Undesirable Discharge Certificate.

The appropriate authority approved the recommendation for discharge on 25 September 1967.  Accordingly, on 17 October 1967, the applicant was discharged in absentia under the provisions of Army Regulation 635-206 for misconduct based on his conviction by a civil court.  He had completed 11 months and 7 days of total active service and he had 333 days of lost time due to due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

On 5 March 1976, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

Army Regulation 635-206, then in effect, outlined the conditions and procedures for the discharge of enlisted personnel for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The Board has noted the applicant’s contentions.  However, the evidence of records clearly show that the applicant was convicted by a civil court of four counts of first degree robbery.  He was sentenced to not less than 10 years nor more than 21 years in prison and considering the nature of his offenses, it does not appear that his undesirable discharge is too severe.

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

__be____  ___js ___  ___clg___  DENY APPLICATION

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

INDEX

CASE ID	AR2001051378	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/04/17	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19671017	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	626	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	144.6000.0000	
2.		
3.		
4.		
5.		
6.