MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           3 October 2002                  
	DOCKET NUMBER:   AR2002072525

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		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 general.

APPLICANT STATES:  That there are mitigating circumstances to his absences without leave (AWOLs).  He invites attention to his civilian record and encloses court documentation to show that in July 1969 he was charged with attempted murder and two instances of felony assault with a deadly weapon.  On 8 January 1970 he was convicted of three counts of felony assault likely to produce great bodily harm.

He also includes letters from his employer and three people who have known him for a long time.  These letters are accepted as an implied argument that the applicant's post-service behavior and accomplishments warrant the requested relief.

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

The applicant was inducted on 7 January 1969, completed training with excellent conduct and efficiency ratings and was ordered to the Overseas Replacement Station, Oakland, California for transfer to Vietnam.  However, he never departed for Vietnam.  He was AWOL from 29 May to 22 July 1969 for which he was convicted by a summary court-martial.  The sentenced confinement for 45 days was suspended and on 2 September 1969 the applicant was reported to be in the hands of civilian authorities in Santa Anita, California.

He was separated with an undesirable discharge on 1 December 1971 under the provisions Army Regulation 635-206.  His SPN (separation program number) code, 284, means conviction by civil court or adjudged to be a juvenile offender during the current period of active duty.  He had 8 months and 9 days of creditable service and 794 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.  The separation authority could waive a board of officers provided the individual concerned was physically in civil custody at the time.  When such separation was warranted, an undesirable discharge was considered appropriate. 
 
The applicant's employer writes that he is reliable and hard working.  He is always on time and works well with others.  A friend of more than 25 years writes that the applicant is reliable and trustworthy and that he carries himself with dignity and self-respect.  A friend of more than 40 years writes that the applicant is a man of good standards within his family and the community.  A minister writes that he has known the applicant at least 30 years and also states that he is a man of good standards within his family and the community.

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 the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record which was devoid of any redeeming service.

2.  The applicant's commission of felonies, which apparently led to his discharge, does nothing to mitigate his AWOLs.

3.  The evidence of support from his employer, minister and friends concerning his post service conduct is noted but these matters do not outweigh the offenses that led to his discharge or demonstrate an error or an injustice in the discharge.  They are not so exceptionally meritorious as to warrant the requested relief.

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

__INW __  __WTM__  ___CG__  DENY APPLICATION

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

INDEX

CASE ID	AR2002072525	
SUFFIX		
RECON		
DATE BOARDED	20021003	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19711201	
DISCHARGE AUTHORITY	AR635-206 .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.21	
2.		
3.		
4.		
5.		
6.