MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 June 2002
	DOCKET NUMBER:   AR2002068855

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Ms. Barbara J. Ellis		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 to a general discharge.

APPLICANT STATES:  In effect, that it was unjust for him to receive an undesirable discharge because he was not guilty of stealing the car he was convicted of stealing.  He further states that he was judged a juvenile offender at the time and that the Army should have given him a general discharge.  He goes on to state that he is getting old and needs medical treatment.

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

He enlisted with parental consent in Dallas, Texas, on 21 September 1962, for a period of 3 years.  He completed his training and was transferred to Fort Bragg, North Carolina for duty as an airborne qualified infantryman.  

On 3 May 1963, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a superior noncommissioned officer.  His punishment consisted of 14 days restriction.

On 11 January 1964, NJP was imposed against him for being derelict in the performance of his duties and for making a false official statement.  His punishment consisted of a reduction to the pay grade of E-2.

He was convicted by a special court-martial on 11 July 1964, of leaving his guard post before being properly relieved.  He was sentenced to confinement at hard labor for 45 days, reduction to the pay grade of E-1, and a forfeiture of pay.

On 20 July 1964, NJP was imposed against him for being insubordinate to the first sergeant.  His punishment consisted of extra duty for 14 days.

He was convicted by a special court-martial on 28 January 1965, of being AWOL from 14 November 1964 to 22 January 1965.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

Meanwhile, he also pled guilty to charges of automobile larceny and was sentenced by civil authorities on 6 January 1965, to confinement in the North Carolina State Prison for 12 months and was segregated as a youthful offender.

On 3 February 1965, the applicant was notified by his commander that action was being taken to recommend him for elimination from the service under the provisions of Army Regulation 635-206, based on his conviction by civil authorities.  The applicant acknowledged that he did not intend to appeal his civil conviction and would accept a discharge from the Army.  Accordingly, the commander initiated the proposed separation action.

The appropriate authority approved the recommendation for separation on 16 February 1965 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 31 March 1965, under the provisions of Army Regulation 635-206, for misconduct involving conviction by civil authorities (initially adjudged a juvenile offender by a civil court during current period of service).  He had served 2 years, 2 months and 2 days of total active service and had 129 days of lost time due to AWOL and confinement by civil authorities.  

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL.  A discharge under other than honorable conditions is 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.  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 with no violations or procedural errors, which would tend to jeopardize his rights.

3.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

4.  The applicant’s contentions have been noted by the Board.  However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge. 

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

___dh ___  ___cla __  ___be___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068855	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/13	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1965/03/31	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	CONV BY CIV AUTH	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.