MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           25 July 2002 
	DOCKET NUMBER:   AR2002069808

	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. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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.

APPLICANT STATES:  He was charged with burglary and the judge told him that if he would join the Army, the judge would drop the charges.  When he came home on emergency leave he was arrested on the burglary charge.  91/2 Months later his counselor told him that if he didn't want to mess with the Army when he got out of jail he should sign the attached papers.  He was only 17 years old and ignorant of the law.  He did not know they had no right to do this because he was U.S. Government property.  They never allowed him to communicate with his commanding officer.  He dates the discovery of the alleged error or injustice as 8 February 2002 and believes that the Board should consider the merits of the case because he feels like his rights as a citizen and as a soldier have been violated.

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

The applicant enlisted and entered active duty on 31 August 1971.  In part II of his DA Form 3286, Statement of Enlistment, the applicant responded "NO" to the question, "Have you ever been arrested, cited, charged, or held by any Federal, State, County, City or other law enforcement authorities or by Juvenile Court or Juvenile Probation Officials for any violation of Federal Law, State law, County, or Municipal Law, Regulation or Ordinance."  

On 14 October 1971, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for a 16-day absence without leave (AWOL).

He was AWOL again on 17 October 1971.  On 2 February 1972 it was learned that the applicant had been apprehended [under another name] in Atchison County Missouri for breaking and entering on 15 June 1971 and had been released on bond on 3 July 1971.  On 7 December 1971, he had pled guilty to second degree burglary and had been sentenced to 2 years imprisonment in the state penitentiary.

His commander notified him 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.  He was informed 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.

On 4 April 1972, 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 18 May 1972 the applicant was separated with an undesirable discharge.  He had 29 days of creditable service and 231 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, at the time, the Uniform Code of Military Justice provided for up to 10 years of confinement for burglary and up to 5 years for housebreaking.

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.  There is no indication of procedural errors which would tend to jeopardize his rights.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The applicant was asked about his arrest record when he enlisted.  Even if he believed that the charges had been dropped, if he had answered honestly, he would have set in motion a chain of events that would have precluded his enlistment.

3.  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

4.  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__  ___RTD__  ___KWL_  DENY APPLICATION

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

INDEX

CASE ID	AR2002069808	
SUFFIX		
RECON		
DATE BOARDED	20020725	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720518	
DISCHARGE AUTHORITY	AR635-206 	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.