MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           28 March 2002                  
	DOCKET NUMBER:   AR2001062508

	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. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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:  That he believes that he deserves to have his benefits restored.  He intended to serve his country as he was instructed.

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

On 5 January 1968, the applicant was inducted into the Army of the United States.  He completed basic and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  On 25 May 1968, he was assigned to Fort Benning, Georgia, to attend the basic airborne course.  

Available evidence indicates that nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military for being absent without leave (AWOL) from his unit from 14-25 June 1968.  On 3 July 1968; he received a second NJP for disobeying a lawful order on the same date.  Both punishments included forfeiture of $24.00 pay for 1 month.  Original copies of the NJP's are no longer contained in his Official Military Personnel File.

On 25 July 1968, the applicant was turned over to civilian authorities for having sexual intercourse with a female against her will on 21 July 1968.  He was transferred to civilian confinement in Bibb County, Marietta, Georgia.

On an unknown date in October 1968, a jury convicted the applicant of rape.  On 7 November 1968, the applicant appeared before the Superior Court of Bibb County and was sentenced to 10 years imprisonment.

On 7 May 1969 and again on 3 June 1969, the applicant’s commander notified him of his intent to recommend separation under the provisions of Army Regulation 635-206, due to a civil conviction.  Both times the applicant acknowledged notification and stated that he did not desire to sign any documents at the time.  

On 25 August 1969, the applicant's chain of command inquired about his appeal status.  On 28 August 1969, the applicant's chain of command was informed that the applicant had not filed an appeal with the Office of the Clerk of the Superior Court of Bibb County and that the time for filing an appeal had expired.

On 29 September 1969, the applicant’s commander notified him again of his intent to recommend separation under the provisions of Army Regulation
635-206, due to a civil conviction.  

On 1 October 1969, the Correctional Counselor at the Georgia State Prison, Reidsville, Georgia, informed the applicant's chain of command that he had spoken with the applicant concerning the separation recommendation and that the applicant stated that he did not want to sign any forms or papers and that any action taken by the Army would be acceptable to him.

The applicant’s commander requested approval of the recommendation for separation.  On 12 November 1969, the appropriate authority approved the recommendation and directed that the applicant would be separated with a UD.

On 21 November 1969, the applicant was separated with a UD.  He had completed 6 months and 5 days of active military service.  He also had 497 days lost time due to being AWOL and in civil confinement. 

Army Regulation 635-206, then in effect, stated, in pertinent part, that an individual will be considered for discharge when an individual is 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.

On 15 November 1977, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge under the Department of Defense Special Discharge Review Program (SDRP).  On 17 July 1978, the applicant personally appeared before the ADRB with counsel and requested an upgrade of his discharge.  On 31 August 1978, his request was again denied.

On 1 June 1983, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

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.

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 type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

5.  Eligibility for Department of Veterans Affairs (DVA) benefits does not fall within the purview of this Board.  Entitlement to DVA benefits rests with that agency. The fact that the applicant is not entitled to DVA benefits does not provide a basis for an upgrade of his discharge.  The Board does not grant relief solely for the purpose of gaining DVA benefits.

6.  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

__FNE___ ____LE__  __TL____  DENY APPLICATION

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

INDEX

CASE ID	AR2001062508	
SUFFIX		
RECON	 	
DATE BOARDED	20020328 	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19691121	
DISCHARGE AUTHORITY	AR635-206 	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6100	
2.		
3.		
4.		
5.		
6.