MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 July 2002
	DOCKET NUMBER:   AR2002069073

	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:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Harry B. Oberg		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 discharge under other than honorable conditions be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he was incarcerated at the time that he was discharged from the Army; therefore, he was unable to obtain the legal assistance that he needed.

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

On 23 October 1973, he enlisted in the Army for 3 years in the pay grade of E-1. He successfully completed his training as a wheel vehicle repairman.

Nonjudicial punishment (NJP) was imposed against the applicant on 10 April 1974, for being absent without leave (AWOL) from 1 April to 8 April 1974.  His punishment consisted of an oral reprimand, restriction and extra duty.

On 29 May 1974, the applicant was convicted by a summary court-martial of being AWOL from 16 April until 13 May 1974.  He was sentenced to a reduction in pay grade, a forfeiture of pay and extra duty.

On 26 June 1974, he was convicted by a summary court-martial of failure to go to his appointed place of duty on 6 June, 7 June, 8 June and 9 June 1974.  He was sentenced to hard labor without confinement for 30 days and a forfeiture of pay.

On 15 October 1974, NJP was imposed against the applicant for being AWOL from 3 September until 30 September 1974.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

The applicant went AWOL again on 11 November 1974 and he remained absent until he was apprehended by civil authorities on 17 December 1974 and was charged with two counts of aggravated robbery with a deadly weapon.  He pleaded guilty and was sentenced to 10 years on the first count and 5 years on the second count of aggravated robbery with a deadly weapon.  He was confined at the Texas Department of Corrections in Huntsville, Texas.

A board of officers convened on 3 February 1977 to determine whether the applicant should be discharged as a result of his conviction by civil authorities.  The applicant was represented by counsel during the board proceedings and counsel introduced into evidence a statement that was written by the applicant.  The board of officers recommended that he be discharged from the Army under other than honorable conditions.

The appropriate authority approved the recommendation for discharge on 11 February 1977.  Accordingly, on 18 February 1977 the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-206 for misconduct as a result of a conviction by civil authorities. He had completed 10 months and 3 days of total active service and he had over 2 years of lost time due to AWOL and confinement.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

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.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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 Board has noted the applicant’s contentions.  However, they are unsupported by the evidence of record.  The record clearly shows that, although he was incarcerated when the board of officers convened, he was represented by counsel during the board proceedings, who submitted a statement in his behalf to be introduced into evidence.

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

___jm___  __tsk____  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2002069073	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/11	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/02/18	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	626	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	144.6100	
2.		
3.		
4.		
5.		
6.