MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 September 2002
	DOCKET NUMBER:   AR2002072635

	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. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 under honorable conditions.

APPLICANT STATES:  In effect, that there was no error or injustice in the decision to separate him from the Army.  He is asking for an upgrade of his discharge based on his good behavior since being discharge.  He was a good soldier during the nine months that he served.  The applicant submits in support of his application several letters and his police record.

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

The applicant entered the Army on 20 April 1971 for 2 years.  He completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Polk, Louisiana.  He was awarded military occupation specialty 11B10 (Infantryman).  The highest pay grade he achieved was pay grade E-4.

On or about 8 October 1971, the applicant departed for an assignment at Fort Carson, Colorado.  While assigned to a unit at Fort Carson the applicant was involved in a fight.  The altercation led to him being charged with voluntary manslaughter.  On 8 December 1972, the applicant entered a plea of guilty.  He was convicted and was sentenced to 3 to 5 years in the Colorado State Penitentiary.

On 2 March 1973, while in confinement the applicant’s unit commander 
initiated separation action under the provisions of Army Regulation 635-206, for misconduct, conviction by a civil court.  The applicant acknowledged receipt of the separation action.  He requested to have his case considered by a board of officers, requested personal appearance, and representation by legal counsel.  He was afforded the opportunity to submit statements in his own behalf but decline to do so.  He also indicated that he did not intend to appeal his civil conviction.

On 30 April 1973, the board of officers recommended that the applicant be separated from the Army with an undesirable discharge.  On 13 August 
1973, the board’s recommendation was approved by the appropriate authority.

On 21 August 1973, the applicant was discharged, under the provisions of Army Regulation 635-206, for a civil conviction.

The Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgrade of his discharge.  On 31 December 1981, the ADRB, by unanimous vote, denied the applicant’s request. 

On 19 November 1997, the Army Board for Correction of Military Records previously denied the applicant’s request for an upgrade of his discharge.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  The regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them, which is tantamount to a finding of guilty, or an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The type of discharge given was and is still appropriate considering the reason for his civil conviction.

3.  The Board commends the applicant for his good post-discharge behavior as a responsible citizen and his willingness to furnish letters vouching for his character and furnishing a copy of his police report.  However, these factors do not overcome the serious nature of the offense, which led to his discharge.  

4.  The type of discharge directed and the reason therefore 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

__FNE __  __ BJE  _  __WDB __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002072635	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/10	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1973/08/21	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6100	
2.		
3.		
4.		
5.		
6.