MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 December 2002
	DOCKET NUMBER:   AR2002073328

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Harry B. Oberg		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 discharge be upgraded.

APPLICANT STATES:  In effect, he knows that he cannot make things better for what happened that resulted in his discharge but that he would like to have his discharge upgraded to get his self-respect back.

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

The applicant entered active duty on 14 December 1965, at age 18.  He completed basic combat training and advanced individual training without a reported incident.

A 9 November 1966 form letter shows that the applicant was arrested by civil authorities, but does not list the specifics of the arrest.  Attached to this letter is a Federal Bureau of Investigation (FBI) criminal report form.  The FBI report shows that the applicant had been arrested in November 1963 for indecent exposure and in September 1966 for disturbing the peace and making obscene phone calls.

As a part of an investigation for an Article 134, Uniform Code of Military Justice (UCMJ) offense, the applicant was afforded physical and psychiatric evaluations.  These evaluations found no mental or physical defects warranting medical disposition.  However, during the psychiatric evaluation the applicant indicated that prior to service he had been convicted of shoplifting, indecent exposure, and peeping.

On 17 November 1966, a special court-martial (SPCM) found the applicant guilty of violation of Article 134, indecent, insulting or obscene language to a female.  He was sentenced to 6 months confinement and forfeiture of $37 per month for 6 months.

On 12 December 1966, the unexecuted portion of the applicant's sentence was remitted.  On 13 December 1966, he was discharged with an undesirable discharge by reason of misconduct.  The reason listed on his DD 214 (Report of Transfer or Discharge) is Section V, Army Regulation 635-206 (Fraudulent Entry)

The documentation associated with the applicant's discharge processing is not in the record.  However, a review of his enlistment documents does show that the applicant did not notify the Army of his pre-service arrests as noted on the FBI report.  

Army Regulation 635-206, then in effect, provided, in pertinent part, that any member who had concealed a criminal record prior to entry could be discharged for fraudulent entry.  When separation for fraudulent entry was warranted an undesirable discharge was normally considered appropriate.
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and 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.

2.  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.

3.  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___  __SK____  __HBO _   DENY APPLICATION

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

INDEX

CASE ID	AR2002073328	
SUFFIX		
RECON		
DATE BOARDED	20021219	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.00	
2.		
3.		
4.		
5.		
6.