MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 July 2002                  
	DOCKET NUMBER:   AR2002069303

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		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:  That there is no record of the 1971 conviction.  He dates the discovery of the alleged error or injustice as 5 March 2001 and states that he did not know that he could use the dismissal as the basis for upgrading his discharge.  In support of his case he submits a letter from a Regional Director of the National Incarcerated Veterans Network, Incorporated, that states the writer has been counseling the applicant about how to live a better life and recommends that the discharge be upgraded.  The applicant also submits a 24 September 1971 court document showing that case, docket number C 71-508, was being dismissed with prejudice because, on 21 July 1971, the applicant had been sentenced to 3 to 10 years under docket number C71-507 and had not appealed.

COUNSEL CONTENDS:  Counsel concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.  Counsel also noted that the applicant had [previously] submitted documentation to show that the conviction had been expunged. 

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

The applicant volunteered for induction and entered active duty on 15 June 1970. He completed training and was ordered to the Overseas Replacement Station for Europe. 

On 28 June 1971, he was convicted in Circuit Court, Macomb County, Michigan of armed robbery and sentenced to 3 to 10 years in the State Prison of Michigan.

His commander notified him in a 13 October 1971 letter of recommended discharge for civil conviction.  He was warned that he could expect to receive an undesirable discharge but that action would be suspended to give him a chance to exercise his rights.  He was notified of his rights to request or waive a board of officers, to be represented by counsel and to submit written statements in his own behalf.  The letter stated that the separation action would be suspended for approximately 30 days if the applicant did not respond to the letter of notification and would be suspended indefinitely if he chose to appeal the conviction.

The applicant waived his rights to have a board of officers consider his case and to be represented by counsel.  He also chose not to submit statements in his own behalf and he stated that he did not intend to appeal the conviction.

The separation authority approved the recommended discharge and directed that an Undesirable Discharge Certificate be issued.

On 23 March 1972, the applicant was discharged under the provisions of Army Regulation 635-206.  He had 10 months and 8 days of creditable service and 331 days lost time.

Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  When separation for civil conviction was warranted an undesirable discharge was considered appropriate.

The Manual for Courts-Martial, Table of Maximum Punishments shows that 10 years confinement is authorized for the offense of robbery.

On 4 January 1974 the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade.  On 15 November 1982 the ADRB re-considered the case to address the applicant's contention that an upgrade was warranted because the record had been expunged.  

He submitted court documents showing that on 29 April 1975 he had been sentenced to 7 to 15 years imprisonment for another armed robbery committed while he was on parole.  While that case was pending the applicant brought forth a motion to set aside the original case (docket number C-71-507).  That motion was granted and a new trial ordered.  The judge then agreed with the prosecution "That because of the disposition of the latter charge and, further because the sentence having already been served on the 1971 case, it is felt that further prosecution is not warranted in this matter and that the ends of justice would not be served by bringing this case to trial."  Accordingly, the old case (on which the applicant had been discharged) was not retried and the record was expunged.  

The ADRB denied the applicant's requests.

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 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.

2.  The applicant's original conviction was set aside on a technicality and the record was expunged because the prosecutor recommended that retrial was not warranted in that the applicant had been sentence to a second, longer imprisonment for a similar offense.

3.  The applicant now offers court documents to show that a third, but earlier, offense had been dismissed because of his conviction and sentencing for the offense that led to the discharge.

4.  The contentions of the applicant and his counsel have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized.  None of the evidence offered shows that, subsequent to the conviction that led to the discharge, any action was taken that was based on the merits of the case.  

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

__RVO___ __SK ___  __JPI___  DENY APPLICATION

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

INDEX

CASE ID	AR2002069303	
SUFFIX		
RECON	 	
DATE BOARDED	20020718 	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730323	
DISCHARGE AUTHORITY	AR635-206 .  .  .  .  .  	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.