MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 April 2002
	DOCKET NUMBER:   AR2002067021

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Mark D. Manning		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:  That his undesirable discharge be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That he has contended from the start that he was railroaded.  He states that he was told that he would only get probation; however, he was sentenced to time in jail.

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

On 22 April 1971, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a combat engineer.

His conduct and efficiency ratings were excellent throughout his enlistment until 10 December 1971, when he received an unsatisfactory conduct rating and a good efficiency rating.

On 31 July 1972, while assigned to Fort Kobbe, Canal Zone, he was arrested and placed in pretrial confinement.  He was charged by civil authorities with two counts of distribution of cocaine.  After consulting with counsel, he plead guilty, and was sentenced to 3 years on each count.  A 3-year special parole term was also ordered.  Sentenced was adjudged on 5 January 1973.

On 6 February 1973, the applicant was notified that a board of officers was to be convened to accomplish his separation from the service under the provisions of Army Regulation 635-206, as a result of a civil court conviction.  In the notification, the applicant was informed that he may receive an undesirable discharge, which would make him ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

He acknowledged receipt of the notification on 7 March 1973, and indicated that he wished to be represented by counsel during the hearing.  Accordingly, a board of officers convened on 7 September 1973, and the applicant was represented by counsel.  The board found that the applicant was undesirable for further retention in the military service based on his conviction by civil court and because he was convicted of an offense involving moral turpitude.  The board recommended that he be discharged and that his service be characterized as undesirable.

The convening authority approved the recommendation for discharge as recommended by the board of officers.  Accordingly, on 8 October 1973, the applicant was discharged under the provisions of Army Regulation 635-206, based on misconduct as a result of a conviction by civil court.  He had completed 1 year, 7 months and 14 days of total active service and he had 303 days of lost time due to confinement.  He was furnished an undesirable 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.  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.  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 therefore were appropriate considering all the facts of the case.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.  Likewise, there is no evidence to support his contentions that he was railroaded or that probation would be his only punishment. 

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

___mdm _  ___kak__  ___tl  ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002067021	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/04/23	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/10/08	
DISCHARGE AUTHORITY	AR	
DISCHARGE REASON	AR 635-206	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000	
2.  627	144.6100	
3.		
4.		
5.		
6.