MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 August 2001
	DOCKET NUMBER:   AR2001055713

	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. P. A. Castle		Analyst	

The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Thomas Baxter		Member	
	Mr. John T. Meixell		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 general under honorable conditions.

APPLICANT STATES:  If possible he would like the Board to change his discharge to general.  In effect, he states he is 57 years old and what he did at age 17 has been over 40 years ago.

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

The applicant contends that his behavior while in the Army was mitigated by youth and that it happened 40 years ago.

The applicant enlisted for three years at the age of 17 and entered active duty on 30 November 1960.  He was assigned to Fort Jackson, SC for basic combat training and upon completion continued to advanced individual training on         20 February 1961.

On 9 March 1961 the applicant was discovered absent without leave (AWOL).  On 13 March 1961 the applicant was returned to military control at St Petersburg, Florida.  On 5 April 1961 the applicant was charged as a juvenile offender of stealing a motor vehicle and transporting it across state lines.  On 13 April 1961 the United States District Court of Florida found the applicant guilty and committed him to the Federal Correctional Institute in Ashland, Kentucky until age 21 or otherwise discharged by law.

Upon receipt of information that the applicant had been convicted by a civil court, and had signed a statement that he would not appeal the conviction, the commander recommended discharge under the provisions of Army Regulation (AR) 635-206, because of civil conviction.  The applicant was administratively discharged in absentia on 16 May 1961 with 3 months and 7 days service and  68 days AWOL.

AR 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge 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.  Youth alone does nothing to show injustice or error when there is no evidence to suggest that he was so immature he could not tell right from wrong nor adhere to the right. 

2.  The passage of time, forty years, does nothing to demonstrate an inequity or error in the applicant’s discharge.

3.  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.

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

__tb ____  __jm____  ___jh ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001055713	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/16	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1961/05/16	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	Civil conviction	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.		
3.		
4.		
5.		
6.