MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            27 August 2002                  
	DOCKET NUMBER:   AR2002073088

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Arthur A. Omartian 		Member	
	Mr. Thomas Lanyl		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 honorable.

APPLICANT STATES: That he has received a full pardon from the Governor of Texas.  He has been a model citizen for over 35 years.  He indicates he wants to remove the stigma of a bad discharge from his name and allow him medical privileges.

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

After serving on active duty from 5 September 1956 to 4 February 1959, he reenlisted for 6 years. 

On 18 June 1959, he was convicted by a Special Court-Martial of driving a privately owned vehicle without an operator’s license, for stealing private property on 18 May 1959 and for being absent without leave on 18 May 1959.  His sentence included confinement at hard labor (CHL) for 1 month and forfeiture of $50.  The sentence to CHL was suspended for 6 months.

On 19 December 1959, he was apprehended by civil authorities in Dewey, Texas and charged with robbery. 

On 19 February 1960, he was found guilty of robbery with firearms and sentenced to confinement in the State Penitentiary, Huntsville, Texas for a period of 5 to 12 years.

On 9 June 1960, the unit commander requested the applicant be discharged under the provisions of Army Regulation 635-206, based on his conviction by civil authorities and sentence of more than a year in confinement.

On 15 June 1960, the commander’s request was approved.  It was directed that the applicant be reduced to the lowest enlisted pay grade and that he be issued an Undesirable Discharge Certificate (UDC).

On 23 June 1960, he was issued a UDC under the above-cited regulation.  His records indicate he had a total of 3 years, 3 months and 23 days of creditable service and 178 days of lost time.

Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.  

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be take to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 Board noted that the State of Texas has set aside the applicant’s conviction.  This action, however, does not alter the fact that he was properly convicted at the time and discharged based on that conviction.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant’s claim of model citizenship has been noted, however, it does not mitigate his undesirable service.

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

_INW___  _AAO___  _TL_____   DENY APPLICATION

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

INDEX

CASE ID	AR2002073088	
SUFFIX		
RECON		
DATE BOARDED	20020827	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.