MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:	   5 September 2002
	DOCKET NUMBER:   AR2002071382

	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:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 an honorable discharge.

APPLICANT STATES:  In effect, that he did nothing against anyone or anything that was related to the Army.  His discharge was a civil conviction due to his introduction to drugs while in the Army.  He believes, that if he had not entered the army, he would not have become addicted to drugs and would not have committed the felony, which lead to his civil arrest and conviction. 

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

On 28 February 1974, the applicant enlisted in the Regular Army for 3 years.  His military occupational specialty was 52BB10 (Power Generator Equipment Operator/Mechanic).  The highest grade he achieved was pay grade E-2.

On 20 August 1974, the applicant was tried and convicted by a civil court of robbery.  The applicant was sentenced to 4 years in civil confinement. 

On 5 September 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.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  The applicant waived consideration of his case by a board of officers.  He waived representation by an appointed counsel and acknowledged that he understood the effects of an undesirable discharge.   

On 17 October 1975, the Commanding General approved the recommendation, reduced the applicant to the lowest enlistment grade and directed the issuance of an Undesirable Discharge Certificate.  On 30 January 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 5 months and 22 days of creditable active service and 529 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.

On 27 June 1984, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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 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.

3.  The applicant's contentions have been noted by this Board.  However, in considering the seriousness of the offense, which led to the applicant’s elimination from service, the Board did not find mitigation of this nature sufficient to override the very serious offense for which he was found guilty by civil authorities.

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

__CLA__  ___MHM___  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002071382	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/05	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1976/01/30	
DISCHARGE AUTHORITY	AR635-206 	
DISCHARGE REASON	A60.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 144.600		
2.		
3.		
4.		
5.		
6.