MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  	   12 September 2002
	DOCKET NUMBER:   AR2002068905

	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	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		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 general discharge under honorable conditions.

APPLICANT STATES:  In effect, that he would like his discharge upgraded because he has changed and that he is a better person.  The applicant did not submit any supporting evidence.

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

On 14 September 1971, the applicant enlisted in the Regular Army for 2 years.  His military occupational specialty was 13B10 (Cannoneer).  The highest grade he achieved was pay grade E-3.

Between 2 October 1971 and 23 March 1972, the applicant accepted four nonjudicial punishments, under Article 15, Uniform Code of Military Justice, for two occasions of leaving his appointed place of duty without proper authority, for being absent without leave from 17 to 20 March 1972, for sleeping while on guard duty and for making a fraudulent statement.  His punishments included forfeitures, restrictions, extra duty and a reduction to pay grade E-2.  

On 16 March 1973, the applicant was convicted by a special court-martial (SPCM) of stealing an 8-track tape player, a Pioneer speaker, a sound design speaker and four 8-track tapes from a fellow soldier.  He was sentenced to a reduction to pay grade E-1, confinement at hard labor for 50 days and a forfeiture of $60.00 pay per month for 2 months.

On 19 November 1973, the applicant was convicted by a SPCM of unlawfully striking another soldier.  He was sentenced to hard labor without confinement for 1 month and a forfeiture of $125.00 pay.       

Between 18 January and 2 May 1974, the applicant accepted three nonjudicial punishments, under Article 15, Uniform Code of Military Justice, for three occasions of failure to repair.  His punishments included forfeitures, restrictions, extra duty and an oral reprimand.      

On 22 April 1975, the applicant was tried and convicted by a civil court of two specifications of sodomy.  The applicant was sentenced to 10 years in civil confinement. 

On 3 October 1975, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-206, due to a conviction by a civil court and that he be required to appear before a board of officers convened to determine whether he should be discharged.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  The applicant requested a personal appearance, consideration, and representation by counsel before a board of officers.  On 20 October 1975, a board of officers found the applicant undesirable for military service and recommended that he be discharged from service because of a civil conviction with the issuance of a UD.

On 30 March 1976, the Commanding General approved the recommendation and directed the issuance of an Undesirable Discharge Certificate.  On 5 April 1976, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-206, by reason of misconduct-conviction or adjudged a juvenile offender by a civil court, with a UD.  He had completed 2 years, 10 months and 13 days of creditable active service and 570 days of time lost.

Army Regulation 635-206, then in effect, provided, 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.  However, at the time of the applicant’s separation the regulation provided for the issuance of a UD.

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 contention that he has changed and that he is a better person is not sufficiently mitigating to warrant relief. 

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.

4.  Therefore, the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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

__JNS__  __DPH___  __WDP__  DENY APPLICATION

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

INDEX

CASE ID	AR20002068905	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/12	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/04/05	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.144.6100		
2.		
3.		
4.		
5.		
6.