MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 May 2003
	DOCKET NUMBER:   AR2003084226

	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. Jessie B. Strickland		Analyst	

	The following members, a quorum, were present:

	Mr. Thomas B. Redfern		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. John T. Meixell		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 a general discharge.

APPLICANT STATES:  That although he deserved the undesirable discharge at the time, he believes that he has become a better man than he used to be, that the discharge has served its purpose and that he desires to resolve this chapter in his life by having it upgraded to a general discharge.  In support of his application he submits four third party statements attesting to his character.

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

He enlisted at 20 years of age in Roanoke, Virginia, on 31 May 1972, for a period of 2 years.  He was transferred to Fort Jackson, South Carolina, to undergo his basic combat training (BCT).

He went absent without leave (AWOL) from 18 June to 2 October 1972 and from 10 October 1972 to 4 January 1973, when he was returned to military control at Fort Belvoir, Virginia, on 5 January 1973, where charges were preferred against him for the AWOL offenses.

He pled guilty to the charges and was convicted by a special court-martial on 1 February 1973.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of pay.

He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to serve his confinement and on 30 April 1973, he departed for Fort Lee, Virginia, to undergo his advanced individual training (AIT) as a petroleum storage specialist.  His report date was 11 May 1973 and he failed to report as ordered.  He was reported as AWOL effective 12 May 1973 and remained absent until he was apprehended/arrested by civil authorities in Lynchburg, Virginia, on 2 April 1974, for assault and battery, petty larceny, trespassing and AWOL.   

His lost time from that point was from 31 May through 25 July 1974, from 26 July 1974 through 22 August 1975, from 25 August through 30 December 1975 and from 31 December 1975 until his separation.

His records show that on 14 January 1975, he was arrested in North Carolina for a robbery that occurred in Lynchburg, Virginia, and was extradited to Virginia.  The charges were dismissed on 24 January 1975.

He was arrested by civil authorities in Lynchburg on 19 July 1975, for failure to appear on a charge of armed robbery. 

On 31 December 1975, he was arrested for one count of grand larceny and two counts of armed robbery in Rustburg, Virginia, and was confined by civil authorities.  He pled guilty to two charges of armed robbery and on 8 March 1976, he was sentenced to serve two consecutive 5-year sentences in the Powhatan Correctional Facility.

On 12 April 1976, the applicant's commander submitted a request for discharge under the provisions of Army Regulation 635-206, due to conviction by civil authorities.  The applicant waived his rights and indicated that he did not wish to appeal his civil conviction.

The appropriate authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-206, for misconduct – conviction by civil authorities.  He had served 2 months and 6 days of total active service and had 1,372 days of lost time.  He was still in a trainee status at the time of his discharge.

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-206, in effect at the 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 processed for separation.  A discharge could not be initiated unless the individual concerned declined to appeal the civil conviction or until their appeals had been exhausted. An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL.  A discharge under other than honorable conditions is normally considered appropriate.

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 violations or procedural errors, which would tend to jeopardize his rights.

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

4.  The applicant’s contentions and supporting statements have been noted by the Board.  However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge. 

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

__jm____  ___lds___  ___tbr___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084226	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/05/01	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/05/31	
DISCHARGE AUTHORITY	AR635-206 CONV CIV AUTH 	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	144.6100/A61.00	
2.		
3.		
4.		
5.		
6.