MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           9 May 2002                  
	DOCKET NUMBER:  AR2002068734

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston  		Chairperson	
	Mr. John N. Slone		Member	
	Ms. Terry L. Placek		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 records be corrected to show he was discharged by reason of physical disability.

APPLICANT STATES: That he didn’t know the process was going on.  He had no word of any kind and received an undesirable discharge in the mail.  He wasn’t granted due process of law.  He was young and couldn’t adjust to Army life.

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

On 28 December 1959, at the age of 17, the applicant enlisted in the Army.  He completed his required training and was awarded military occupational specialty 140 (Field Artillery Basic).

On 27 April 1960, while assigned to a unit at Fort Benning, Georgia, he was convicted by a Summary Court-Martial (SCM) of going from his guard post with intent to abandon the same on 20 April 1960.  His sentence was a forfeiture of $52 pay per month for 1 month.

During the period 22 May 1960 to 24 October 1961, he served in a unit in Korea.

On 20 September 1961, while assigned to a unit in Korea, he was convicted by a SCM of being absent without leave (AWOL) for the period 16 to 18 September 1961.  His sentence was confinement at hard labor (CHL) for 10 days, forfeiture of $25 pay per month for 1 month and a reduction to pay grade E-2.

On 15 November 1961, while assigned to a unit at Fort Knox, Kentucky, he was convicted by a Special Court-Martial of being AWOL for the period 25 September to 24 October 1961.  His sentence included a reduction to pay grade E-1, CHL for 6 months and forfeiture of $45 pay per month for 6 months.

On 6 December 1961, he was released from the Army stockade, Fort Knox, to the local civilian authorities for violation of the Dyer Act (National Stolen Vehicle Act).

On 30 January 1962, at the age of 19, he was convicted of violation of the Dyer Act by the US District Court, Grand Jury, Lexington, Kentucky.  He was sentenced to confinement for 1 year and 1 day.

On 15 March 1962, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-206, based on conviction by a civil court.

On 16 March 1962, a 2AA Form 507 (Enlisted Personnel Data) was prepared showing the applicant’s latest physical status as 111111, code A.
On 23 March 1962, the appropriate separation authority approved his discharge and directed he be furnished an Undesirable Discharge Certificate.

On 9 April 1962, he was advised he was being discharged from the Army and the type of discharge issued.  He was further advised that if he felt he should have receive a higher type of discharge, he could request a review by the Army Discharge Review Board within 15 years after the effective date of his discharge.

There is no record that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitation.

Army Regulation 635-206, Misconduct - Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion, Section VI, Conviction by Civil Court, indicates, in pertinent part, that an individual will be discharged when a soldier has been initially convicted by civil authorities, or action taken against him, which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform code of Military Justice is death or confinement in excess of 1 year.

This Board operates under the standard of presumption of regularity in governmental affairs.  The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

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.  He was on active duty from 28 December 1959 to 9 April 1962.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay, which was so severe as to render the applicant medically unfit for retention on active duty.  The applicant was separated from active duty for reasons other than physical disability.  

2.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no medical evidence to the contrary.

3.  There is nothing in the available records to document whether or not he was advised of the separation proceedings in advance or not; however, that is not sufficiently mitigating as to cause approval of his request at this time.  He was incarcerated at the time of his discharge.

4.  The Board notes that the applicant was over 19 years of age when he was convicted of violation of the Dyer Act.

5.  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.

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

_jhl___  _tlp____  _jns____         DENY APPLICATION

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

INDEX

CASE ID	AR2002068734	
SUFFIX		
RECON		
DATE BOARDED	20020509	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.