MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           11 September 2003
		DOCKET NUMBER:  AR2003088119

	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. Stanley Kelley		Chairperson	
	Mr. Christopher J. Prosser		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 more favorable discharge.

APPLICANT STATES:  In effect, that he was young and not very smart when he joined the Army.  He goes on to state that he broke a limb during basic training and is now encountering problems with it.  He goes on to state that he is not making any excuses for his absence without leave (AWOL) but he would like to have his discharge upgraded.

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

He enlisted with parental consent in Cleveland, Ohio, on 14 November 1973, for a period of 3 years, training as a cook and assignment to Fort Ord, California.  He successfully completed his basic training at Fort Polk, Louisiana, and received orders transferring him to Fort Ord with a report date of 1 March 1974.  He failed to report as ordered and was reported as AWOL.

He remained absent until he returned to military control at Fort Ord on 1 April 1974.  He again went AWOL on 3 April 1974 and remained absent until he surrendered to military authorities on 25 May 1974, and charges were preferred against him.

He again went AWOL on 3 July 1974 and on 3 October 1974, the applicant's wife informed Federal Bureau of Investigation officials during an interview, that the applicant was in prison.  On 20 May 1975, the Army took custody of the applicant on the date he was tried and convicted of armed robbery and sentenced under the California Youth Offenders Act.

On 10 July 1975, the applicant acknowledged that he had been advised that he was being recommended for separation from the service under the provisions of Army Regulation 635-206, due to his conviction by civil authorities.  He indicated that he did not intend to appeal his conviction and after consulting with counsel, he elected to exercise all of his rights.  He also submitted a statement in his own behalf whereas he asserted that going AWOL was a childish thing to do and he realized it at that time.  He stated that he desired to appear before a board of officers and that it was his intent to stay in the Army for a career if given a chance to do so.

The applicant appeared before a board of officers on 16 December 1975, represented by counsel and accompanied by family members, various prison officials and counselors, who all testified in his behalf.  The board of officers, after hearing testimony and reviewing the evidence of record, voted to discharge him for misconduct and recommended that he be furnished an Undesirable Discharge Certificate.  The convening authority approved the findings and recommendation of the board.
Accordingly, he was discharged under other than honorable conditions on 28 January 1976, under the provisions of Army Regulation 635-206, based on his conviction by civil authorities.  He had served 4 months and 23 days of total active service and 657 days of lost time due to AWOL and confinement by civil authorities.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 11 March 1976, contending that his discharge was too harsh and that he should be afforded the opportunity to return to the service.  The ADRB determined that his discharge was proper and denied his appeal on 3 March 1977.

He again applied to the ADRB on 19 January 1978 for an upgrade of his discharge and requested an appearance before the ADRB Travel Panel in San Francisco.  He was granted a personal appearance but failed to respond to the notification letter, which informed him of the hearing date and location.  Accordingly, the ADRB reviewed his records and determined that his discharge was both proper and equitable under the circumstances.  The ADRB voted unanimously to deny his appeal on 5 September 1979.

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.  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 a serious offense, conviction by civil authorities, desertion or AWOL.  A discharge under other than honorable conditions is still 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 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

__clp____  ___sk___  ___jm___  DENY APPLICATION

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

INDEX

CASE ID	AR2003088119	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/09/11	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/01/28	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	CIVIL CONV	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	144.6100/A61.00	
2.		
3.		
4.		
5.		
6.