MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           8 October 2002                   
	DOCKET NUMBER:  AR2002073963

	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. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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 (UD) be upgraded to honorable. Further, that his 435 days of lost time be restored.

APPLICANT STATES: That he has health related issues that deal directly with time in service and he is seeking the ability to have his medical needs taken care of.

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

During the period 13 February to 1 March 1973, he was a member of the Army Reserve Delayed Enlistment Program.

On 2 March 1973, he enlisted in the Regular Army.  He completed his required training and was awarded military occupational specialty 52B (Power Generator Equipment Operator).

On 23 March 1973, he was administered nonjudicial punishment under Article 15, Uniform Code of Military Justice for being disrespectful to a superior noncommissioned officer on 19 March 1973.  His punishment included a forfeiture of $31 pay, extra duty and restriction.

He was advanced to pay grade E-3, effective 3 October 1973.

During the period 10 to 27 February 1974, he was absent without leave (AWOL).

During the period 1 March 1974 to 14 January 1975, he was AWOL.

On 8 March 1974, his unit commander preferred court-martial charges against him for being AWOL from 1 March 1974 until a date to be determined; however, he was in an AWOL status and could not be presented with the charges.

On 2 December 1974, he was sentenced in the Circuit Court for the County of Lunenburg, Lunenburg, Virginia on a conviction for a felony, to wit: Robbery.  He was in the Lunenburg County Jail pending transfer to a Virginia State Penitentiary to complete a 10-year sentence.

On 20 February 1975, the unit commander advised the applicant that he was being considered for separation from the Army under Army Regulation 635-206, based on his conviction by civil authorities.  He was advised of his rights.

On 20 February 1975, the unit commander requested the Sheriff of Lunenburg, Virginia assist in obtaining a medical examination for the applicant.  The Sheriff responded that medical facilities were not available.  He also requested the commander send the applicant’s personal items to the Lunenburg Jail. 
On 24 February 1975, the applicant indicated he had been afforded the opportunity to consult with appointed counsel, or military counsel of his own choice and he declined the opportunity.  He waived consideration of and personal appearance before a board of officers, elected not to submit statements in his own behalf and waived representation.  Further, he indicated he had not appealed his conviction in civil court and did not intend to appeal.

On 20 March 1975, the commander recommended the applicant’s discharge under Army Regulation 635-206.

On 14 April 1975, the appropriate separation authority approved the discharge and directed reduction to the lowest enlisted grade and that he be furnished an Undesirable Discharge Certificate.

On 21 April 1975, the applicant was discharged, with a UD, under the above-cited regulation.  His DD Form 214 (Report of Separation from Active Duty) indicates he had 11 months and 5 days of creditable service and 435 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 applicant’s indication of health issues is not supported since he failed to provide any documentation in support of his request.  He is not entitled to upgrade of his discharge or restoration of his lost time.

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.  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

__MHM___  _JAE___  _JLP___  DENY APPLICATION

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

INDEX

CASE ID	AR2002073963	
SUFFIX		
RECON		
DATE BOARDED	20021008	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.