MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 May 2002                   
	DOCKET NUMBER:   AR2002067456

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer 		Chairperson	
	Ms. Kathleen A. Newman 		Member	
	Mr. Donald P. Hupman 		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.

APPLICANT STATES:  That he was not advised of his rights and that he did not receive due process or counsel.

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

The applicant enlisted on 30 August 1972 for a period of 2 years.  He successfully completed basic combat training and advanced individual training and was transferred to Fort Lee, Virginia, for duty as a motor transport operator.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was arrested by civil authorities for possession of marijuana on 27 August 1973.  On 18 September 1973, the applicant was sentenced to serve 9 months in jail and fined $250.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, records show that on 23 November 1973 the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-206 for misconduct due to being convicted by a civil court during his current term of active military service.  He had served 
1 year and 24 days of total active service and had 60 days lost time due to civilian confinement.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally 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 Board considered the applicant’s contentions that he was not advised of his rights and that he did not receive due process or counsel.  However, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were in accordance with law and regulations applicable at the time. 

2.  Accordingly, the type of discharge directed and the reason for separation appear to be appropriate.

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

MHM___  KAN_____  DPH_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002067456	
SUFFIX		
RECON		
DATE BOARDED	20020514	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19731123	
DISCHARGE AUTHORITY	AR 635-206  	
DISCHARGE REASON	Misconduct due to being convicted by a civil court during his current term of active military service	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.